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LAW  OF  EXECUnOXS. 

VOL.  I. 


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A  TREATISE 


ON  THE 


LAW  OF  EXECUTIOXS 


INT   CTVTL   CASES, 


ASj)  or 


PROCEEDINGS  L\  MD  AND  KESTK.UNT  THEREOF, 


BY 


ABRAHAM  CLARK  FREEMAN, 

ACTHOB  or  A  TREATlciE  ON  THE   LAW  OP  jrbGMESTH,  A.XD   AUK)  OP  A  T&ZATUS  OH 
LAW  OP  COTEKANCY   AND  FAKTITION, 


EsoeaUio  est  /ructtu  et  jinia  ItgU. 


VOL.  I. 

SECOND    EDITION. 


SAN   FRANCISCO: 
BANCROFT-WHITNEY    COMPANY, 

Law  Pcblishebs  a>'D  Law  Booeselleks. 

1888. 


CopyrighL,  1876, 
Bt   a.    C.    FBEE51A5, 

Copyright,  ISSS, 
By  a.  C.  Fkeemax. 


PREFACE  TO  THE  SECOND  EDITION'. 


A  LITTLE  more  than  twelve  years  have  elapsed  since 

the  puhlioution  of  the  first  edition  of  n»y  treatise  on  the 
Law  of  Executions.  During  tliat  time  our  various  courts, 
state  and  national,  have  been  busy,  and  their  labors  have 
resulted  in  the  addition  of  many  decisions  to  those  pre- 
viously existing  upon  this  topic.  Hence  the  necessity  of 
a  second  edition  of  my  treatise,  containing  references  to 
these  more  recent  adjudications  and  statements  of  the 
legal  principles  wliich  they  reaffirm  or  establish.  I  have, 
however,  deemed  it  best  not  to  confine  myself  to  the  mere 
addition  of  new  cases.  On  the  contrary,  I  have  re-exam- 
ined the  whole  subject,  and  have  added  whatever  came 
within  my  research,  regardless  of  the  date  of  decision. 
Thu  scope  of  the  work  has  also  been  enlarged  by  includ- 
ing within  it  writs  and  proceedings  issued  or  taken  for  the 
purpose  of  enforcing  decrees  in  chancery,  and  this  has 
involved  the  consideration  of  chancery  sales  and  the  va- 
rious steps  required  to  procure  their  vacation  or  confirma- 
tion, and  to  compel  the  payment  of  the  purchaser's  bid. 
This  has  occasioned  a  necessity  for  inserting  two  new 
chapters,  and  renumbering  others  in  the  latter  part  of  the 
work.  The  first  of  the  new  chapters  is  inserted  as  num- 
ber XX.,  and  is  devoted  to  the  reporting,  confirming,  and 
vacating  of  chanceiy  sales.  Chapter  xx.  of  the  former 
edition  is  now  number  xxi.  The  second  new  chapter  is 
numbered  xxii.,  and  in  it  are  treated  proceedings  to  col- 
lect the  amount  bid,  whether  at  execution  or  chancery 


686139 


Vi»  PREFACE  TO  THE  SECOND  EDITION. 

sales,  or  the  amount  of  the  deficiency  when  it  has  been 
ascertained  by  a  resale.  From  this  point  the  chapters 
follow  the  same  order  as  in  the  first  edition,  but  are  num- 
bered respectively  from  xxiii.  to  xxxiv.  instead  of  from 
xxi.  to  xxxii. 

With  respect  to  the  law  of  executions,  it  has  been  found 
that  the  questions  requiring  most  frequent  consideration 
by  the  courts  are.  What  property  is  subject  to  execution  ? 
and  what  exemptions  may  be  allowed  ?  Special  attention 
has  therefore  been  given  to  the  subjects  of  garni.«hment, 
of  conditions  and  restraints  designed  to  withdraw  prop- 
erty from  execution,  and  of  the  various  statutor}*  exemp- 
tions. Considerably  more  than  throe  thousand  cases  liave 
been  added  to  the  table  of  citations,  and  the  text  has  been 
augmented  to  a  corresponding  extent. 

A-  C.  FREEMAN. 
San  Francisco,  October  1,  1888. 


PREFACE  TO  THE  FIRST  EDITION. 


TuK  prejudice  against  the  increase  of  law  books  is  un- 
quchlionubly  great.  So  well  is  this  fact  understood,  that 
an  author  is  expected  to  inXroduco  his  book  by  an  attempt 
to  justify  its  existence.  I  can  olfer  (his  apology  for  the 
production  of  each  of  my  prior  works:  that  it  treated  of 
subjects  of  prime  importance  and  frequent  recurrence,  not 
recently  nor  extensively  considered  by  any  other  writer. 
I  long  hoped  that  the  same  apology  might  be  urged  iu 
favor  of  this  book;  and  that  any  asperities  which  might 
bo  aroused  by  observing  defects  in  its  execution  would  be 
mollified  by  the  remembrance  that  it  was  the  only  effort 
which  had  l>een  made  to  collect,  arrange,  and  interpret  a 
mass  of  autliorities  so  vast  that  their  numbers  bore  un- 
questionable evidence  of  the  difficulty  and  importance  of 
the  subject  with  which  they  were  connected. 

When  this  book  was  about  half  completed,  I  was  de- 
prived of  a  portion  of  my  coveted  apology  by  the  publica- 
tion of  a  work  on  the  same  topic.  My  first  impulse  was 
to  discontinue  my  own  labors.  But  a  work  on  Execu- 
tions was  so  clearly  a  sequel  to  my  work  on  Judgments; 
my  thought  and  research  in  the  preparation  of  the  latter 
were  so  evidently  of  a  character  to  fit  me  for  the  prosecu- 
tion of  the  former;  and,  beyond  all,  I  was  so  thoroughly 
interested  in  my  theme, —  that  I  determined  to  proceed. 
The  result  of  this  determination  is  now  before  the  reader. 
If,  after  a  patient  examination  of  my  work,  he  can  truly 
say  that  there  was  no  need  of  its  publication,  and  that  it 


viii  PREFACE  TO  THE  FIRST  EDITION. 

will  prove  of  no  material  aid  to  the  bench  and  bar  of  my 
country,  then  both  myself  and  my  publishers  will  de- 
serve his  commiseration  as  much  as  we  shall  merit  his 
censure. 

This  work,  though  not  formally  subdivided  in  that 
manner,  consists  of  three  parts.  The  first  treats  of  execu- 
tions against  the  property  of  the  defendant;  the  second, 
of  executions  against  the  person  of  tlie  defendant;  and 
the  third,  of  excutions  to  recover  specific  property,  to  the 
possesion  of  which  the  plaintiff  has  been  adjudged  to  be 
entitled.  Part  i.  comprises  all  that  is  usually  under- 
stood by  the  word  "execution,"  and  occupies  more  than 
nine  tenths  of  the  entire  book.  I  have  endeavored  to 
consider  the  several  questions  in  the  order  in  which  they 
are  likely  to  arise.  My  first  eight  chapters  are  occupied  by 
matters  usually  presenting  themselves  for  consideration 
before  the  writ  is  delivered  to  the  sheriff.  They  treat  of 
the  issue  and  form  of  original  executions;  of  alias  and 
pluries  writs;  of  writs  of  vcjidifioni  exponas;  of  amending 
and  quashing  writs;  of  proceedings  to  obtain  executions 
on  dormant  judgments;  and  of  the  consequences  flowing 
from  various  errors  and  irregularities  in  these  several 
writs  and  proceedings.  When  a  writ  is  delivered  to  an 
officer,  he  ought  first  to  ascertain  whether  it  is  one  which 
ho  may  lawfully  execute;  and  if  so,  within  what  time  and 
limits,  and  under  whose  direction,  he  should  proceed. 
My  ninth  chapter  is  devoted  to  inquiries  which  must  be 
made  by  the  officer  in  ascertaining  these  matters.  Natu- 
rally, the  next  inquiry  is  for  property  on  which  to  enforce 
the  writ.  Chapters  x.  to  xv.,  therefore,  treat  of  real  and 
personal  property  subject  to  execution;  of  property  bound 
by  execution  liens;  and  of  personal  property  and  home- 
stead exemptions.  Supposing  that  the  information  con- 
tained in  these  chapters  will  enable  the  ofiicer  to  learn 
with  what  property  he  may  properly  interfere,  I  have  next 
sought  to  show  how'  such  proj^erty  may  be  taken  in  exccu- 


PREFACE  TO  THE  miST  EDITION.  IX 

tion  and  forced  to  produce  the  satisfaction  of  the  writ. 
Hence  my  sixteenth,  seventeenth,  and  eighteenth  chapters 
are  devoted  to  levies  upon  real  and  f>ersonal  j)ropcrty,  and 
to  proceedings  where  such  property  is  claimed  adversely 
to  the  defendant.  After  the  levy  come  the  proceedings 
preparatory  to  the  sale;  the  sale  itself,  and  the  various 
measures  looking  to  its  confirmation  or  vacation;  the  re- 
demption, if  any  be  made,  and  if  not,  then  the  deed  and 
the  various  questions  looking  to  the  ascertainment  of  the 
purchaser's  rights  and  of  the  means  by  which  they  may 
bo  enforced.  These  questions  and  proceedings  occupy 
chapters  xix.  to  xxiii.  Returns  on  executions,  their  effect 
and  admissibility  as  evidence,  and  the  circumstances  in 
which  they  may  be  quashed  or  amended,  are  the  subjects 
embraced  in  chapter  xxiv.  Chapters  xxv.  and  xxvi.  treat 
of  proceedings  by  elegit  as  they  were  formerly  pursued  in 
England,  and  of  proceedings  by  extent  as  they  are  now 
authorized  in  most  of  the  New  England  states.  Here 
terminate  the  proceedings  ordinarily  taken  under  exe- 
cutions against  property;  but  as  they  do  not  uniformly 
prove  eflcctive,  we  have  yet  to  consider  what  further  steps 
may  bo  taken  to  compel  the  satisfaction  of  the  plaintiff's 
demand.  Hence  the  necessity  for  chapters  xxvii.  and 
xxviii.,  upon  proceedings  at  law  and  in  equity,  supple- 
mental to  or  in  aid  of  execution.  To  these  I  have  added 
a  brief  chapter  upon  equitable  proceedings  restraining 
executions.  Chapter  xxx.  treats  of  the  satisfaction  of 
executions  and  the  distribution  of  their  proceeds.  Chap- 
ters xxxi.  and  xxxii.  comprise  parts  ii.  and  iii.  of  the 
book.  Their  contents  have  already  been  indicated.  It 
w'ill  be  observed  that  I  have  not  collected  in  any  single 
chapter  the  rules  governing  the  liabilities  of  officers  and 
others  for  wrongful  acts  done  while  engaged  in  the  service 
of  executions;  nor  have  I  separately  treated  of  actions  to 
enforce  those  liabilities.  Neither  of  these  subjects  has, 
however,  been  overlooked.     Each  has  been  considered  in 


X  PREFACE  TO  THE  FIRST  EDITION. 

many  different  portions  of  the  book,  in  connection  with 
other  subjects  from  which  I  deemed  it  inseparable. 

Recently,  American  text-books  have  been  unfavorably 
criticised  in  England,  because  of  their  numerous,  and  ap- 
parently inconsiderate,  citation  of  cases.  It  were  better, 
in  the  opinion  of  our  critic,  for  an  author  to  confine  his 
attention  and  that  of  his  readers  to  those  cases  which, 
from  being  carefully  considered  by  courts  of  acknowl- 
edged erudition,  probity,  and  ability,  really  deserve  the 
name  of  authorities,  than  to  cite  indiscriminately  every- 
thing which  has  been  honored  by  the  immortality  of  a 
publication  in  a  law  report.  This  opinion  is  so  plausible 
that  it  has  met  the  concurrence  of  several  law  periodicals 
in  this  country.  But  it  must  bo  remembered  that  we 
have  many  supreme  courts,  each  making  and  publishing 
decisions  which  are  regarded  as  law  within  the  jurisdic- 
tions in  which  they  are  pronounced.  Tho  result  of  this 
is  not  one  system  of  law,  but  many  systems.  A  text-book 
is  expected  to  go  into  every  part  of  our  Union.  It  must 
be  the  companion  and  assistant  of  practitioners  under  all 
these  various  systems.  This  it  cannot  bo  unless  it  is  com- 
petent to  refer  each  to  the  cases  on  which  ho  may  rely  with 
the  greatest  degree  of  confidence  at  the  place  where  he 
happens  to  be  discharging  tho  duties  of  his  profession.  A 
decisien  made  by  tho  highest  court  of  tho  youngest  or 
most  obscure  of  our  states  or  territories  may  be  treated 
with  indifference,  or  even  with  contempt,  in  England,  or 
Massachusetts,  or  New  York.  It  may,  in  fact,  richly  de- 
serve such  treatment.  It  is,  nevertheless,  the  law  in  the 
jurisdiction  in  which  it  was  pronounced.  To  the  practi- 
tioners and  to  all  other  persons  within  that  jurisdiction, 
it  is  paramount  in  importance  to  the  decisions  of  all  other 
legal  tribunals,  however  wise  or  venerable  they  may  be. 
Hence  no  text-writer  can  properly  ignore  it.  Whatever 
he  may  think  of  it  himself,  he  must  not  forget  that,  in  ono 
state  at  least,  it  must  be  treated  as  a  co-rect  exposition  of 
the  law. 


PREFACE  TO  THE  FTRST  EDITION.  xi 

This  book  will  be  found  to  contain  nearly  fourteen  thou- 
sand citations,  embracing  references  to  over  ten  thousand 
different  cases.  These  large  numbers  prove  that  my 
theme  is  one  whicli  has  compelled  tlio  attention  of  courts 
with  extraordinary  frequency,  and  entitled  itself  to  the 
distinction  of  a  treatise  devoted  to  its  exclusive  considera- 
tion. The  materials  for  this  treatise  are  so  numerous  and 
so  various  that  their  arrangement  has  given  mo  far  greater 
trouble  than  any  similar  task  which  I  have  heretofore  un- 
dertaken. Whether  the  result  proves  gratifying  or  other- 
wise, the  reader  may  feel  assured  that  I  have  spared 
neither  time  nor  labor  in  the  attempt  to  do  justice  both 
to  him  and  to  myself. 

A.  C.  F. 

Saceamento,  Cal.,  August  1,  1876. 


TABLE  OF  CONTENTS. 


Xlll 


CHAPTER   I. 

DEFINrnONS  AND  CLASSIHCATIONS. 

Object,  classification,  and  <lefiuition  of  executions  —  Executiona  for  po8- 
BBssiou  of  real  and  i)erjonal  property  —  Executions  against  chattels 
Writs  in  aid  of  executions  —  Writs  to  enforce  decrees §§1-9 

CHAPTER   H. 

ISSUING  THE  OKKUNAL  EXEOmON. 

The  courts  that  may  issue  it  — The  judgments  on  which  it  may  issue  — 
For  and  against  whom  an«l  by  whom  issued  —  Time  for  issuing  —  Sus- 
pension of  right  to  issue  —  Issuing  writs  of  attachment  —  Sequestra- 
tion, assistance,  and  other  writs  to  enforce  decrees  —  Practice  to  be 
pursued  in  obtaining  writs  of  assistance §§  10-37  e 

CHAPTER  HI. 

THE  FORM  OP  THE  ORIGINAL  EXECUTION. 

Essential  parts  —  Consequences  of  variances,  omissions,  and  alterations 

—  Forms  of  execution  and  other  writs  to  enforce  decrees §§  38-47  a 

CHAPTER  IV. 

ISSUING  ALIAS  AKD  PLURIES  WRITS. 

Classification  —  The  return  and  proceedings  under  former  writs  — On 
judgments  satisfied  by  mistake  —  Where  former  writ  was  void  — 
Where  a  sale  has  conveyed  no  title  —  Form  of  —  Notice  to  Ob- 
tain  §§  4&-56 

CHAPTER   V. 

THE  WRIT  OF  VENDITIONI  EXPONAS. 

Definition  —  Object  —  May  ha.ve Jieri  facias  clause  —  Eflfect  of  sale  under 

—  Collateral  attack  — To  whom  directed §§  57-62 


Xiv  TABLE  OF  CONTENTS. 

CHAPTER   VI. 

AMENDING  WTvITS  OF  EXECUTION. 

Extent  of  the  power  to  amend,  and  instances  in  which  it  will  be  exer- 
cised —  Time  —  Persons  against  whom  ameinlui'-Uts  may  be  made  — 
Eflfect  of  amendments §1  63-72 

CHAPTER  vn. 

QUASHING  WRITS  OF  EXECUTION. 

What  may  be  quashed — Notice  of  motion  for—  Who  may  apply  for  — 

Time  —  Grounds  —  Consequence  of §5  73-80 

CHAPTER   Vni. 

PROCEEDINGS  TO  OBTAIN  EXECUTION  ON  DORMANT  JUDGMENTS. 

First,  by  scire  faeiae  —  Object  of  this  writ  —  In  what  actions  it  may  issue 

When  necessary  —  Form  of  writ  —  Service  of  —  Time  for  issue  — 

Irregularities — Judgments  on  fcire /iuitu  —  Alias  writs  of  —  Sec- 
ond, by  motion §8  81-97 

CHAPTER   IX. 

INQUIRIES    CONCERNHNG    THE    DUTIES    AND    LIABIUTIES    OP 
OFFICERS  ON   RECtUVlNtJ   WRITS. 

Indorsing  timo  of  receipt  —  Ascertaining  whether  the  writ  is  vabd,  and 
wluther  he  may  safely  execute  it  —  Comi>otoncy  of  the  officer  to 
execute  the  writ  —  Termination  of  officer's  authority  —  UTien  he 
must  act  —  \\Tio  may  control  the  writ ii  9S-108 

CHAPTER   X. 

PEPvSON.VL  PROPERTY    SUB.IEtT  TO  LEVY   ANT)  S.\LE. 

Classification  —  Conflict  of  I  jiws  —  Tangible  proi>crty  —  Money  —  Choaea 
in  action  —  Crops  —  F'ixturcs  —  Tl>e  defendant's  actual  interest  only 

—  Eipiitablo  and  Iciisehold  estates  —  Interests  of  mortgagors  and 
mortgagees,  pawners  and  pawnieos,  Itadors  and  bailees,  co-tenants 
and  copartners  -  Inchoate  estates  —  F-states  in  reversion  or  remain- 
der —  Property  held  uniler  conditional  punhasc  —  Projwrty  subject 
to  cxcoution  in  Oipiity       IK-fcndant  whose  property  cannot  Ih<  seizeil 

—  Property  in  custody  of  law  —  ProiK-rty  conveyed  or  mortgaged  to 
hinder,  delay,  or  defraud  creditors  —  Absence  of  change  of  posses- 
sion as  evidence  of  fraud  in  transfers §§  109-158 


TABLE  OF  CONTENTS.  XV 

CHAPTER   XI. 

PERSONAL  PROPERTY'  SUBJECT  TO  GARNLSHMENT. 
Object  of  garnishment  —  Garnuhinent  of  proi^erty  not  subject  to  execu- 
tion or   frautlulently  trannfern-J  —  PoaseMion  neoeMary  to  rvuder 
porwiun  liable  asgarnLshe*  —  Bailee  of  clioa««  in  action  —  Debta  aub- 
ject  to  gamlghmont fu  I59_i7| 

CIIAITER   XII. 

REAL  PROPERTY  StiUECT  TO  EXECUTION. 
Landu  subject  to  execution  at  common  law  —  Uncertain,  contingent,  and 
undivided  inUreata  —  General  rule  —  Naked  legal  title  —  Title  with- 
out i>oeiie«Biou  —  PosscMioa  without  title  —  Interei*t  held  under  the 
UiiiU'd  Stated  — Van.. UH  caUtea  and  iiitert«t«  — E<juiUblo  titles  — 
Devises  and  trusts  to  withdraw  projK'rty  from  execution g§  172-194 

CHAPTER   XIII. 

THE  LIEN  OF  EXECUTIONS. 
General  nature  of  the  lien,  and  its  difference  from  other  liens  —  Prop- 

erty   subject    to  —  Commencement   of  —  Duration  —  Dormancy 

Ixws  of  —  Effect  of  bankrupt  act  upon gs  195-207 

CHAPTER   XrV. 

OF  PROPERTY  EXEMPT  FROM  EXECUTION. 

Statutes  of  exemption  —  How  construed  —  Extra-t«rritorial  effect  of 

Claim  —  Waiving  and  forfeiting  beuetita  of  —  Consequences  of  disre- 
garding —  Debts  against  which  exemption  may  Ijc  enforced  —  Sale 
and  encumbrance  of  exempt  property  —  Constitutionality  of  exemp- 
tion laws  —  Persona  entitled  to  exemption  —  Various  classes  of  ex- 
empt property §§  208-238 

CHAPTER   XV. 

HOMESTEAD  EXEMPTIONS. 

Who  entitled  to  — How  selected  —  What  titles  may  be  held  by  — 
Uses  of  homestead  for  business  and  other  purposes  —  Homestead 
appurtenances  —  Amount  of  —  Abandonment  and  forfeiture Lia- 
bilities against  which  homesteads  are  not  exempt  —  Produce  and 
proceeds  of  homesteads  —  Claims  for  moneys  fraudulently  invested 

in  —  Judgments  for  torts,  or  in  favor  of  state  or  United  States 

Sale  of  to  satisfy  liens , §§  239-250 


XVI  TABLE  OF  CONTENTS. 

CHAPTER  XYI. 

OF  LEVIES  UPON  PERSONAL  PROPERTY. 

Which  writ  to  be  first  levied  —  Diligence  required  —  What  amount 
should  be  seized  —  Whose  property  may  be  taken  —  Levy  on  prop- 
erty of  which  defendant  is  a  part  owner  —  Of  indemnity  —  Acts 
required  to  make  and  maintain  a  levy — Restoring  possession  to 
defendant  —  Receiptors  —  Inventory  —  Levy  under  second  writ  — 
Effect  of  levy  —  Levy  accomplished  by  unlawful  act  —  Releasing 
and  vacating  —  Liability  for  —  Necessity  of, §^  251-274 

CHAPTER   Xyil. 

REMEDIES  OF  OFFICERS  WHERE  THE  TITLE  TO  PERSONALTY  IS 

DISPUTED. 

Methods  of  protection  from  claim  of  strangers  to  the  writ  —  Right  to 
indemnity  —  Summoning  a  jury  —  Trial  of  right  of  property  —  Bills 
of  interpleader §§  275-278 

CHAPTER   XVIIl. 

OF  LEVIES  UPON   REAL  ESTATR 

Not  to  be  made  where  there  is  personalty  —  How  mado  —  Statutory 

provisions  respecting  —  Describing  the  property  —  fififect  of ....  §§  279-282 

CHAPTER   XIX. 

PROCEEDINGS  FROM  THE  LEVY  TO  AND  INCLUDING  THE  SALE. 

General  synopsis  of  the  officer's  duties  —  Appraisement  —  Notice  of  sale 

—  Time  of  sale  —  Adjournments  —  Place  of  sale  —  By  whom  and  to 
whom  sale  may  be  made  —  Selling  in  parcels  —  Fraudulent  combi- 
nations and  devices  —  Memorandum  of  sale  —  Payment  of  bids  — 

—  Resales  —  Liability  for  wrongful   sales,   and   for   ueglcctmg   to 

Bcll §§  28a-304 

CHAPTER  XX. 

REPORTING,   CONFIRMING,   AND  VACATING   CHANCERY  SALES. 

Necessity  for  confirmation  —  The  report  of  the  sale  and  proceedings 
thereon  —  Opening  the  biddings  —  Grounds  for  refusing  confirma- 
tion and  vacating  sales  —  Effect  of  the  confirmation §§  304  a-304  1 

CHAPTER   XXI. 

VACATING  AND  CONFIRMING   EXECUTION  SALES  — ISSUE  AND 
TRANSFER  OF  CERTIFICATES   OF  PURCHASE. 

Who  may  move  to  vacate  sale  —  Ni)tice  of  motion  and  time  within  which 
it  must  be  given  —  Suits  to  vacate  sales  —  Grounds  for  —  Inade- 


TABLE  OF  CONTENTS.  xvil 

quacy  of  price  —  Confirming  sales  —  Issue  of  certificates  of  sale,  and 

the  assignment  thereof §§  305-313 

CHAPTER  XXII. 

PROCEEDINGS  TO  COLLECT  THE  AMOUNT  BID. 

Power  of  chancery  over  bidders  —  Onler  against  purchaser  to  pay  hia 
bid  —  Proceedings  for  resale  —  Proceedings  to  compel  payment  of 
loss  resulting  from  resale  —  Action  at  law  for  amount  of  bid,  or  for 
deficiency §§313  a-313  h 

CHAPTER  XXIII. 

REDEMPTION  FROM  EXECUTION  SALE 

Depends  on  statute  —  Waiver  ot  defects  in  making  —  Retroactive  stat- 
utes—  By  whom  may  be  made  —  Evidence  of  right  to  redeem  — 
Amount  to  bo  paid  —  Effect  of  —  Bill  in  equity  —  Title  of  purchaser 
pending  right  of  defendant  to  redeem §§  314-323 

CHAPTER   XXIV. 

THE  DEED. 

Necessity  for  —  Authority  to  make  — How  compelled  — By  whom,  to 
whom,  and  when  to  be  made  —  Forms,  recitals,  variances  —  Descrip- 
tion —  Acknowledgment  —  Second  deed  —  Effect  by  relation  — 
Contradicting §§  324-334 

CHAPTER  XXV. 

THE  PURCHASER'S  TITLE,   RIGHTS,   AND  REMEDIES. 

Obtains  defendant's  title  and  no  other  —  Secret  vices  and  equities  —  Ir- 
regularities in  the  proceedings  —  Reversal  of  judgment  — Right  to 
rents  and  profits  —  Remedies  for  waste  and  to  recover  possession  — 
Defenses  which  can  be  asserted  against  the  purchaser  —  Remedy  for 
failure  of  title  —  Purchaser's  right  to  subrogation,  or  to  hold  land 
until  repaid  the  amount  of  his  bid §§  335-352  a 

CHAPTER  XXVI. 

OF  RETURNING  EXECUTIONS.      ' 

When  and  by  whom  to  be  made  —  Form  of  various  returns  —  Amend- 
ments —  Quashing  —  Construing  —  When  returns  are  admissible  as 
evidence  — How  compelled  —  Liability  for  false  return  and  for 
neglecting  to  return §§  353-369 


xviii  TABLE  OF  CONTENTS. 

CHAPTER    XXVII. 

PROCEEDINGS  UNDER  ELEGITS. 
History  —  What  to  be  taken  —  Proceedings  —  Effect  of §§  370-371 

CHAPTER  XXVIII. 

EXTENDING    EXECUTIONS    UNDER     THE     STATUTES    OF    THE 
NEW  ENGLAND  STATES. 

Strict  construction  of  statutes  —  What  may  be  extended  —  Appr&iMrv, 
their  oatha  of  office,  apixjintment,  duty,  and  proceedings  —  When 
extent  must  be  by  metes  and  Iwunds  —  Extent  for  too  much  — 
Delivery  of  seisin  —  Officer's  return  —  Recording — Contradicting 
and  amending  the  return  —  Redemption  from  —  Effect  of §$  372-391 

CHAPTER  XXIX. 

PROCEEDINGS    AT    LAW    SUPPLEMI:N'T.VL    TO    OR   IN    AID   OF 

EXECUTION. 

Definition,  object,  nature,  ami  classification  — On  what  judgment*  —  In 
what  courts  and  by  aud  against  whom  may  Iw  prosccute^l  —  Wit- 
ncHses  and  their  examination  —  Procee<ling«  to  obtain  from  a 
defendant  the  discovery  of  his  assets  —  Arrest  of  defendant  — 
Grounds  for  discharge  of  defendant  without  examination  —  Second 
examination  —  Proceedings  against  third  persons  —  Receiver*  — 
Property  which  may  be  reached  —  Power  to  enforce  obedience  to 
orders  —  Garnialieo's  right  to  pay  officer  holding  the  writ fH  392-423 

CHAPTER   XXX. 

PROCEEDINGS  IN  EQUITY  IN  AID  OF  FAECUTION  AND  TO  REACH 
EQUITABLE  ASSETS. 

Object  —  Property  subject  to  —  On  what  judgments  —  Necessity  for  ex- 
hausting legal  remedies  —  Parties  plaiiitilT  and  defendant  —  The 
lien  of  creditors'  bills §§  424-434 


CHAPTER  XXXI. 

ENJOINING  PROCEEDINGS  UNDER  EXECUTION. 

No  injunction  where  there  is  an  adecjuato  remedy  at  law  —  Nor  on  ac- 
count of  errors  or  irrcj^ularities  —  Enjoining  sale  of  proj^rty  not 
belonging  to  the  defendant  —  Injunction  to  prevent  dispossession  of 
one  person  under  writ  against  another  —  Preventing  the  clouding  of 
titles  aud  the  sale  of  exempt  property  —  Compelling  resort  to  a  par- 
ticular fund  —  Injunctions  in  aid  of  proceedings  in  bankruptcy .  .§§  435-441 


TABLE  OF  CONTENTS.  xix 

CIlAl'TER   XXXII. 

SATISFACTION  OP  EXECUTIONS  AND  DLSTIUBUTION  oF  TEEIR 

riUX'EEDS. 

Payment,  how  and  to  whom  made  —  Keeping  the  writ  alive  afu.r  pay- 
uieut  —  Satiafaction  by  pr.K;oc.lings  uuJcr  cxccutiou  —  Kemedy 
where  officer  in  m  doubt  ab<,ut  <ii«tributJuu  of  [jrotccdii  —  Gcueral 
rules  of  distribution  —  Liability  of  oUicoru  for  proceoda,  and  actiona 
to  enforce  auch  liability ^  443-450 

CHAPTER  XXXIII. 

EXECUTIONS  AGAINST  THE  PERSON. 
Hiatory  —  Caaea   in   which    it   may   iasue  —  Form  —  Irregularitiea  — 
Amemling  oiid  Quajjhiug  —  Privilege  from  arrest  —  How  cxecuU-d 

—  Effect  of  arrest  —  Discharge  from  cuatody  —  Esca{>e8  and  liability 
therefor  —  Rearrest  under k^  451-4<J7 

CHAPTER   XXXIV. 

EXECUTIONS    FOR  TTIE  POSSR<^SION  OF  REAL  AND    PERSONAL 

PROPERTY. 
Writa  for  posaeaaion  of  personalty —  Taking  poaseaaion  without  a  writ 

—  Issuing  writs  for  the  i>ossesaion  of  real  csUte  —  Form  of  —  Com- 
pelling and  controlling  execution  of  —  How  executed  — WTio  may  be 
dispoaaessed- Restitution  — Proceedings  where  defendants  wrong- 
folly  retake  posaeaaion ^^  468-477 


LAW  OF  EXECUTIONS. 


CHAPTER   I. 

DEFINmONS  AND  CLASSIFICATIONS. 

§  1.  General  object  aud  defluition  of  vxecutiona. 

§  2.  General  clasditication  of  executions. 

§  3.  Ill  real  actionB. 

§  4.  In  actions  for  possessioQ  of  personalty. 

§  5.  Against  tht  person 

§  C.  Against  lands. 

§  7.  Against  chattels. 

§  8.  Writs  in  aid  of  execution. 

§  S  a.     Writs  to  enforce  decrees. 

§  9.  Classilication  of  executions  as  treated  in  this  work. 

§  1.  General  Object  and  Definition  of  Executions. 
—  Theoretically,  a  judL^uiciit  i.s  the  end  uf  the  law.  It 
permanently  settles  di.sputed  issues  of  fact,  and  applies 
to  the  facts,  as  thus  settled,  established  principles  of 
law.  It  declares  the  respective  obliij^ations  of  the  liti- 
gants iu  regard  to  the  matters  wliich  they  have  chosen 
to  submit  to  the  decision  of  the  court. 

Practically,  a  judgment  may  be  as  f^r  from  the  end 
as  it  is  from  the  beginning  of  the  law.  The  declara- 
tion of  a  right  or  the  permanent  and  unalterable  estab- 
lishment of  an  obligation  can  of  itself  have  no  practical 
force,  except  as  it  operates  on  the  private  or  the  pub- 
lic conscience;  and  unfortunately,  people  who  have  en- 
gaged in  a  long  and  perhaps  bitter  litigation  are  likely 

Vol.  I.  — 1 


§  1  DEFIMTIONS  AND  CLASSIFICATIONS.  2 

to  emerge  with  consciences  so  dulled  toward  each  other 
that  they  will  respond  to  nothing  less  than  the  practi- 
cal forcing  power  of  the  law.  Even  where  this  state 
of  mind  has  not  been  produced,  the  losing  party, 
through  his  inal)ility  to  discharge  the  established  ob- 
ligation, may  make  it  indispensable  to  call  in  aid  the 
final  process  of  the  law.  Every  step  taken  from  the 
issue  of  this  process  is  liable  to  be  attended  with  legal 
embarrassments  of  the  most  perplexing  nature,  and  to 
lead  to  litigation  more  persistent  and  more  complicated 
than  that  upon  which  the  process  was  based.  The 
writ  which  authorizes  the  sheritf  or  other  ofticer  either 
to  enforce  a  judgment  at  law  <ir  to  endeavor  to  produce 
a  satisfaction  thereof,  is  called  an  execution.'  Ever}' 
writ  which  authorizes  an  olhcer  to  carry  into  cfl'ect  a 
judgment  is  an  execution."  But  a  writ  of  execution  is 
not  necessarily  based  upon  a  judgment.  It  may  be 
employed  to  enforce  other  obligations,  which  by  stat- 
ute have,  in  this  re.s})ect,  been  made  equivalent  to  judg- 
ments. A  familiar  instance  of  this  existed  in  the 
English  law,  in  the  case  of  certain  obligations  by  mat- 
ter of  record.  Each  of  these  obligatio;is  was  "a  writ- 
ing obligatory,  acknowledged  before  a  judge  or  other 
officer  having  authority  for  that  purpose,  and  enrolled 
in  a  court  of  record;  and  of  this  there  are  two  soits, 

'  "Execution,  ercciilJo,  signilicth  iu  law  the  obtaining  of  actu.il  possession  of 
anj'thing  acquired  by  judgment  of  law  or  by  a  line  executory  levied,  whether 
jt  bo  by  the  sheritf  or  by  the  entry  of  the  party."  Co.  Lit.  154  d.  "Execu- 
tion ia  the  act  of  carrynig  into  effect  the  linal  judgment  of  a  court  or  other 
jurisdiction.  Tlie  writ  which  authorizes  the  officer  to  so  carry  into  eflFect  such 
juilgment  is  also  called  an  execution."  Bouvicr's  Law  Diet.,  tit.  Execution; 
"Execution,  in  a  practical  sense,  is  the  formal  method  prescribed  by  law, 
whereby  the  party  entitled  to  the  benolit  of  a  judgment,  or  of  an  obligation 
equivalent  to  judgment,  may  obtain  that  benefit."  Bingham  on  Judgments 
and  Executions,  101. 

*  Picrsou  V.  Hammond,  22  Tex.  5So;  United  States  r.  Nourse,  9  Pet  2S. 
Darby  v.  Carson,  9  Ohio,  1-19, 


3  DEFINITIONS  AND  CLASSIFICATIONS.  |2 

viz.,  rceog^nizances  or  statutes.  The  first  of  these 
securities  is  the  recognizance  at  couinion  hiw,  which  is 
no  more  than  an  obligation  on  record,  and  may  be 
acknowledged  before  the  several  judges  out  of  term 
and  in  any  part  of  England,  and  may  be  entered  on 
record  as  well  out  as  in  term."'  The  statutes  referred 
to  are  statute  merchant  and  statute  sta|ile.'^  There 
are  a  number  <>f  instances  in  the  United  States  where, 
by  statute,  an  execution  may  be  issued  without  being 
preceded  by  a  judgment. 

But  the  term  "execution"  will  not  in  this  work  be 
used  in  its  most  comprehensive  sense.  It  will  be  em- 
ployed in  its  most  usual  sense,  —  a  sense  in  which  it 
denotes  a  writ  issued  to  enforce  a  judgment  or  order  of 
a  court  of  law,  or  a  final  decree  of  a  court  of  equity. 

§  2.  General  Classification  of  Executions  on  Judg- 
ments.—  A.S  an  execution  is  issued  to  make  a  judgment 
productive,  it  must  be  of  such  a  nature  as  to  produce 
all  the  relief  warranted  by  the  judgment,  and  no  more. 
In  other  words,  an  execution  is  necessarily  of  the  same 
nature  as  the  judgment  on  which  it  is  based.  This 
judgment  is  either  for  the  recovery  of  some  spoc-ific 
thing,  or  for  some  specified  sum  of  money,  or  both  for 

^  Bac.  Abr.,  tit.  Execurion,  B,  1. 

^  "A  statute  merchant  is  a  bond  of  record,  acknowledged  before  one  of  the 
clerks  of  the  statute  merchant  and  mayor  of  the  city  of  London,  or  two  mer- 
chants of  the  said  city,  for  that  purpose  assigned,  or  before  the  mayor  or 
warden  of  the  towns,  or  other  discreet  men  for  that  purpose  assigned.  This 
recognizance  is  to  be  entered  on  a  roll,  which  must  be  double,  one  part  to  re- 
main witli  the  mayor  and  the  other  with  the  olerk,  who  shall  write  with  his 
own  hand  a  bill  obligatory,  to  which  a  seal  of  the  king  for  that  purjjose 
appointed  shall  be  affixed,  together  with  the  seal  of  the  debtor."  "Tlie  stat- 
ute staple  is  a  bond  of  record,  acknowledged  before  the  mayor  of  the  staple  in 
the  presence  of  all  or  one  of  the  constables.  To  this  end,  says  ihe  statute, 
there  shall  be  a  seal  ordained,  which  shall  be  affixed  to  all  obligations  made  on 
such  recognizances  acknowledged  in  the  staple."  Bac.  Abr.,  tit.  Execution, 
B,  L 


g  3  DEFIOTTIOXS  AND  CLASSIFICATIONS.  4 

the  recovery  of  some  specific  thing  and  some  specified 
sum  of  money,  or  for  the  recovery  of  some  thing,  and 
in  case  it  cannot  be  had,  for  the  recovery  of  a  sum  of 
money.  Executions  may  therefore  be  divided  into  four 
classes: — 

1.  Those  which  authorize  the  officer  to  dehver  to 
the  plaintiff  some  specific  thing. 

2.  Those  which  autliorize  the  officer  to  proceed  to  do 
somctliing  by  which  it  is  hoped  a  suu^  of  money  may 
be  produced. 

3.  Those  which  authorize  the  officer  to  do  both 
these  things,  as  where  an  execution  in  ejectment  com- 
mands that  [tlaintifF  be  placed  in  possession  of  the  prem- 
ises, and  that  the  officer  hny  on  sufficient  property  to 
produce  a  satisfaction  of  the  damages  accrued  t<j  plain- 
tiff by  the  withholding  of  the  projierty. 

4.  Tliose  wliich  command  the  officer  to  take  and 
deliver  to  plaintiff  certain  i)ersonal  property,  and  in 
case  it  cannot  be  fouud,  to  levy  on  other  property  suffi- 
cient to  satisfy  plaintiff  for  the  value  of  the  property 
of  which  no  return  can  bo  luul. 

^  3.  Executions  in  Real  Actions.  —  The  executions 
referred  to  in  the  preceding  section,  as  of  the  first  class, 
represent  those  cases  in  which  nothing  belonging  to  the 
defendant  is  taken  away  from  him.  They  command 
the  plaintiff  to  be  put  in  possession  of  something  that 
belongs  to  iiiui.  and  whicli,  therefore,  the  defendant  has 
no  right  to  retain.  The  property  of  which  possession 
is  to  be  given  to  the  plaintiff  is  either  real  or  personal. 
If  it  be  real  property,  tlie  execution  must  conform  to 
the  nature  of  the  judgment,  and  be  appropriate  to  tlie 
interest  which  the  plaintiff  has  recovered.  In  a  real 
action  in  which   the  seisin  or  possession  of  lands  was 


6  DEFINITIONS  AND  CLASSIFICATIONS.  |4 

recovered,  tlio  writ  of  habere  facias  sciniiam,  or  writ  of 
seisin  of  a  fi'cclioM,  issuctl.  This  "is  a  judicial  writ 
issuiiij,'  out  of  the  record  of  the  judj^ment,  and  directed 
to  tlio  slierifF  of  tlic  county  wliere  the  land  lies,  com- 
manding^ liim  quod  Iiahcre  facial  to  the  demandant  seisi- 
nam  mam  dc  messuarjio"  etc.* 

If,  in  ejectment,  oid}'  a  chattel  interest  or  term  of 
years  be  awaidcd  to  plaintiff,  the  judgment  must  be 
made  available  by  a  habere  facias  possessionem,  or  writ 
of  possession  of  a  chattel  interest.^ 

§  4.  In  Actions  for  Possession  of  Personalty.  — 
"  Upon  a  replevin  the  writ  of  execution  is  the  writ  de 
retnrno  habendo;  and  if  the  distress  be  eloigned,  the  de- 
fendant shall  have  a  capias  in  withernam:  but  on  the 
plaintiif' s  tendering  the  damages  and  submitting  to  a 
fine,  the  process  in  withernam  shall  l>e  stayed.  In 
detinue,  after  judgment,  the  plaintiif  shall  have  a  dis- 
tringas to  compel  the  defendant  to  deliver  the  goods 
by  repeated  distresses  of  his  chattels;  or  else  a  scire 
facias  against  any  third  person  in  whose  hands  they 
may  happen  to  be  to  show  cause  why  they  should  not 
be  delivered;  and  if  the  defendant  still  continues  obsti- 
nate, then  (if  the  judgment  hath  been  by  default  or  on 
demurrer)  the  sheriff  shall  summon  an  inquest  to  ascer- 
tain the  value  of  the  goods  and  the  plaintiff's  damages; 
which  (being  either  so  assessed  or  by  the  verdict  in 
case  of  an  issue)  shall  be  levied  on  the  person  or  goods 
of  the  defendant.  So  that,  after  all,  in  replevin  and 
detinue  (the  only  actions  for  recovering  the  specific 
possession  of  personal  chattels),  if  the  wrong-doer  be 
very  perverse,  he  cannot  be  compelled  to  a  restitution 

^  Com.  Dig.,  tit.  Execution,  A,  2;  3  Bla.  Com.  413. 
*  Com.  Dig.,  tit.  Execution,  A,  5;  3  Bla  Com.  413. 


§5  DEFINITIONS  AND  CLASSIFICATIONS.  6 

of  the  identical  tiling  taken  or  detained;  but  he  still 
has  his  election  to  deliver  the  goods  or  their  value, — 
an  imperfection  in  the  law  that  results  from  the  nature 
of  personal  property,  which  is  easily  concealed  or  con- 
veyed out  of  the  reach  of  justice,  and  not  always 
amesnable  to  the  magistrate."  ' 

^5.  Execution  against  the  Person.  —  When  the 
judgment  is  not  for  any  specific  thing,  hut  simply  that 
the  plaintiff  recover  a  certain  sum  of  money,  satisfac- 
tion is  sought,  eitlicr  hy  seizing  the  pii-sfjn  of  the  debtor 
and  imprisoning  him  until  he  pays  the  debt,  or  by  seiz- 
ing ui)on  liis  prop«>rty,  and  eitlier  turning  it  over  to 
tlie  plaintiff,  or  selling  so  nmch  as  may  be  necessary 
at  public  auction  and  applying  the  proceeds  to  the  dis- 
charge of  the  execution.  When  the  judgment  was  in 
favor  of  the  king  for  a  fine,  the  writ  which  authorized 
the  seizure  of  the  dilVndant's  person  was  called  a  capias 
pro  fiiir.  A  capias  vtlaf/aluiii  issued  on  a  judgment  of 
outlawry  being  returned  by  the  sheriif  U|)on  the  exigent.* 

A  capias  ad  safisfacicinlum  is  the  writ  of  execution 
wliich  on  a  judgment  at  the  suit  of  a  common  person 
authorizes  the  seizure  and  imprist^nment  of  the  defend- 
ant. ]>y  tlie  coninKtii  law,  this  writ  issued  only  in  ac- 
tions vi  at  armi.^;^  but  it  was  allowed  in  other  actions 
by  a  variety  c)f  statutes.* 

'  .1  nil.  Com.  4i:^. 

'  8t'c  IJouvior's  Diet.,  tit.  Capiw;  Com.  Dig.,  tit  Execution,  B.  1. 

'Com.  Dij;.,  tit.  Kxi'oution.  C,  1. 

*  TiiUl's  Prao.  "JIH.  "  rorsonal  execution  for  payment  of  death  waa  intro- 
duooil  after  e.Kcoution  ai.'aiust  land,  and  lonp  after  execution  a;.-aiu/;t  m<»vaMe«. 
Nor  will  this  appear  singular  wlien  wo  consiiler  that  the  debtor's  i»crsoa  cannot, 
like  his  land  or  movables,  bo  converted  into  money  for  the  jKiyment  of  debt. 
And  with  regard  to  a  vaasjil  in  particular,  his  i)er»on  cannot  regularly  Ik-  with- 
drawn from  the  service  he  owes  his  superior.  This  would  not  have  l)ecn  tol- 
erated while  the  feudal  law  was  in  vigor,  and  camo  to  \>e  indulged  iu  the 
detline  of  the  law,  when  land  was  improved  an<l  personal  services  were  lesa 
valued  than  pecuui.iry  casualties."     Kanic's  Liiw  Tracts,  I>^. 


^  DEHNITIONS  AND  CLASSIFICATIONS.  1 6 

§  6.  Execution  against  Lands.  — "  By  the  common 
law,  execution  never  was  aj^^uinst  the  lands  or  tenements 
of  the  part}'  at  the  suit  tA'  a  common  person,  except 
in  tiie  case  ot*  an  heir."'  "  By  Uvari  faclajf  the  bherilf 
mi"^ht  levy  on  the  goods  and  chattels  of  the  defend- 
ant, and  mi<,'ht  also  take  the  emUenicnts.  rents,  and 
present  profits  of  his  lands,  but  nut  the  land  itself* 
This  writ  was  at  law  usually  issued  only  on  judg- 
ments in  favor  of  the  crown.  It  was  also  employed 
as  a  writ  of  execution  against  the  goods  and  chattels 
of  a  elt  rk.  When  issued  against  a  clerk,  it  was  di- 
rected to  the  hishop  t)f  the  dioce.se,  and  after  n  citing 
that  the  defendant  had  no  lay  fee  nor  goods  and  chat- 
tels on  which  a  levy  could  be  made,  it  commanded 
the  bisliop  to  cause  execution  to  be  made  of  the  goods 
and  chattels  of  the  defendant  in  his  diocese.'  When 
issued  against  a  clerk,  this  writ  wa.s  styKd  a  h  rari  facias 
de  hon h cccks'iasticiii.  A  sequeatari  facias  could  be  issued 
instead  of  a  levari  facias  de  bonis  ecclesia^sticis,  and  accom- 

>  Com.  Dig.,  tit.  Execution,  C,  2;  Bingham  on  Judgments  and  Executions, 

108. 

»  Com.  Dig.,  tit.  E.xecution,  C,  3;  .3  Bouv.  Inst.  -sec.  .'MOO;  Bingham  on 
Judgments  and  Executions,  113;  3  Bla.  Com.  417.  The  writ  of  Umri  Jaeuu 
Ls  to  a  limited  extent  employed  in  the  United  States.  In  Indiana  it  accom- 
plished the  ohjects  usually  sought  by  a  verulUioni  fxponns.  Doe  r.  Cunningham, 
6  Blackf.  430.  In  Delaware  it  is  used  to  enforce  judgments  under  the  meclian- 
ics'  lieu  laws,  and  to  sell  unproductive  or  unimproved  real  estate.  Laws  of  Del., 
ed.  of  1874,  pp.  G70,  G78.  In  Pennsylvania  it  issuer  to  enforce  charges  against 
lauds,  such  xs  mortgages,  mechanics'  liens,  and  municipal  charges.  Brightly's 
Pardon's  Digest,  4S3,  484.  053,  G54,  1080;  Hart  r.  Homiller.  23  Pa.  St.  30;  Peut- 
la;i<l  r.  Kelly,  6  Watts  &  S.  483.  This  ra<lical  difference  l>etween  the  common 
law  and  the  American  writ  of  leinri  facMS  will  be  observed;  namely,  that  the 
former  authorized  the  taking  of  chattels  and  the  products  and  profits  of  real 
estate,  while  the  latter  is  not  directed  against  chattels  nor  against  the  rents 
nor  profits  of  lands,  but  to  authorize  the  sale  of  the  land  itself.  In  Pennsyl- 
vania and  Delaware,  if  the  rents  and  profits  of  lands  for  seven  years  be  adjudged 
sutiioient  to  pay  the  debt,  "  the  lands  are  extended  by  the  writ  of  lih^rari  f<id>M 
and  possession  given  to  the  creditor."  3  Bouv.  Inst.,  sec.  3394;  Laws  of  Del., 
ed.  of  1874,  p.  (JS2\  Brightly's  Purdon's  Digest,  648,  663-GOS. 
»  Bouvier's  Diet.,  tit.  Levari  Facias;  3  Bla.  Com.  418. 


§6  PEFlXinOXS  AND  CLASSIFICATION'S.  8 

plished  the  same  purpose.^  The  statute  of  13  Edw.  I., 
c.  18  (otherwise  known  as  the  statute  of  Westminster  2, 
c.  18),  provided  that  when  a  debt  was  recovered  or 
acknowledj^ed  in  the  kind's  court,  or  damajres  awarded, 
the  plaintifi"  might,  at  his  election,  have  a  ^vrit  com- 
manding the  sheriff  to  deliver  to  him  tlie  chattels  of 
the  debtor  and  one  half  of  his  lands,  to  be  retained  un- 
til the  debt  is  satisfied.  The  writ  of  execution  issued 
at  the  election  of  the  plaintiff,  in  j)ur.suance  of  this  stat- 
ute, is  called  an  elegit.'  The  extendi  facias,  or  extent,  is 
a  writ  of  execution  by  virtue  of  which  the  goods,  lands, 
and  person  of  the  defendant  may  at  once  be  seized. 
Under  the  clerjit,  a  moiety  only  of  the  lands  of  de- 
fendant was  appropriated  to  the  Siitisfaction  of  the 
writ,  and  this  appropriation  was  but  tem|)orary.  The 
plaintiff  thereby  became  a  tenant  by  ili'jif,  and  so  con- 
tinued until  by  the  profits  of  the  lands,  or  otherwise,  a 
satisfaction  of  the  judgment  was  pnxluced,  when  his 
estate  terminated,  and  the  defendant  again  became 
seised  of  the  whole.  Under  an  extendi  facias,  or  extent, 
"the  sheriff  is  to  cause  tlio  lands  to  be  a[)praised  to 
their  full  exteutled  value  before  he  delivers  them  to 
the  plaintifi",  that  it  may  be  certainly  known  how  soon 
the  debt  will  be  satisfied."^ 

'  Bingham  on  Judgmenta  ami  Kxecutions,  114. 
•      '*  Porter's  Lessee  r.  Cocke,  Pock,  30;  Hiiigluiin  on  Juilgmenta  and  Execu- 
tions, 108;  Com.  Dig.,  tit.  Executions,  C,  14;  .1  Bla.  Com.  418. 

^  3  Bla.  Com.  420.  "  Land,  when  left  free  t<i  commerce  by  the  ilissolntion 
of  the  feudal  fetters,  was  of  course  subject  to  execution  for  j>ayment  of  debt. 
This  was  early  introduced  with  relation  to  the  king.  For  from  Magna  Charta 
it  appears  to  have  been  the  king's  privilege,  failing  goods  and  chattels,  to  take 
possession  of  the  land  till  the  debt  was  paid.  And  from  tl»e  same  chapter  it 
appears  that  the  like  privilege  is  bestowed  upon  a  cautiont-r,  in  order  to  draw 
payment  of  M'hat  sums  he  is  obliged  to  advance  from  the  prinoijwd  ilebtor.  By 
the  statute  of  merchants  the  same  privilege  is  given  to  merchants;  and  liy  13 
Edw.  L,  c.  18,  tlic  privilege  is  communicated  to  creditors  in  general,  but  with 
the  following  remarkable  liuiitatiou,  that  they  are  allowed  to  possess  the  half 


9  DEFINITIONS  AND  CLASSIFICATIONS.  |7 

§  7.   Execution  against  Chattels  Personal. It  will 

be  seen  lioiu  the  precedin*,'  section  that  all  the  i'urim  of 
execution  authorizinjr  a  levy  on  lands  or  on  the  i)rofit8 
of  land  also  authorized  a  seizure  of  the  j^oods  and  chat- 
tels of  the  defendant.  Where  neither  laud.s  nor  their 
profits  were  sought  to  be  subjected  to  the  siitisfaetion 
of  the  judgment,  a  writ  o^ fieri  facias  was  is.sued.  Un- 
der this  writ  the  sheriff  was  authorized  to  seize  and  sell 
every  cluittel  thing  belonging  to  the  dc-fendant  and  not 
exempt  from  execution.'  An  important  difference 
existed  in  the  methods  by  which  real  and  personal 
property  were  appropriated  toward  the  satisfaction 
of  executions.  Care  was  taken  that  the  defendant's 
realty  should  not  be  sacrificed  through  a  forced  .sale. 
Under  the  dcfjii  the  title  remained  in  the  defendant, 
while  the  actual  profits  of  a  moiety  were  applied  to  the 
payment  of  the  debt.  Under  the  extendi  facias  the 
lands  of  the  debtor  were  first  appraised,  and  then  set 
off  to  the  creditor  at  their  appraised  value.  Whichever 
writ  the  plaintiff  elected  to  take  out,  the  defendant 
might  rest  assured  that  no  more  of  his  real  estate  could 
be  taken  than,  in  the  judgment  of  a  disinterested  jurv 
of  his  neighbors,  was  equivalent  in  value  to  the  amouiit 
of  the  debt.  In  regard  to  personal  property,  no  such 
solicitude  was  ever  manifested.  The  law  authorized  it 
to  be  seized  and  sold  at  public  auction  for  whatever  it 
might  chance  to  bring.  This  favoritism  toward  real 
estate  has  in  the  major  portion  of  the  United  States 
ceased  to  exist;  but  in  some  of  the  states  the  policy  of 
appraising  lands  and  then  setting  them  off  to  the  credi- 

only  of  the  land.  By  this  time  it  was  settled  that  the  military  vassal's  power 
of  aliening  reached  the  half  only  of  his  freeliold,  and  it  was  thought  incongru- 
ous to  take  from  the  debtor  l)y  force  of  execution  what  he  himself  could  not  dis- 
pose of,  even  for  the  most  valua1)le  consideration."  Kame's  Law  Tracts  339. 
^  Bingham  on  Judgments  and  Executions,  111 


§8a  DEFINITIONS  AND  CLASSIFICATIONS.  1? 

do  are  of  such  a  nature  tliat  anotber  may  do  them  for 
him,  the  court  usually  authorizes  its  master,  commis- 
sioner, or  other  officer  to  execute  the  decree  for  and  as 
the  act  of  the  defendant.  This  authorization  is  sanc- 
tioned Ijy  statute  in  most  of  the  states.  The  national 
courts,  however,  have  not  been  vested  with  such  stat- 
utory authority,  and  must  enforce  their  decrees  in  some 
mode  warranted  by  their  own  rules  of  proceeding  or  by 
the  practice  of  the  English  court  of  chancery.^  Whether 
any  special  statute  has  been  adopted  on  the  subject  ur 
not,  the  various  courts  of  equity  in  the  United  States 
have  power  to  enforce  their  decrees  by  the  same  writs 
and  proceedings  as  were  allowable  in  the  courts  of  like 
jurisdiction  in  England  immediately  i)receding  our  sep- 
ation  from  that  country,'^ 

\V  hen  the  coercive  powers  of  the  court  of  chancery 
were  ."-ought  to  be  invoked,  the  first  step  of  the  coui- 
]i]ainant  was  to  procure  the  Issuing  and  service  of  a 
writ  of  execution.  This  was  a  mandate  under  tlie 
great  seal,  commanding  tlic  defendant  to  do  the  arts 
required  of  liiin  by  the  decree.'  This  writ  i>  n(»w 
obsolete.  Instead  of  procuring  its  issuance,  the  com- 
plainant now  obtains  a  co})y  of  the  decree  anil  servos  it 
ui)on  tlie  defendant,  who  tliereupon  becomes  bound  to 
comply  therewith.  Under  tlie  English  practice  the 
decree  must  state  the  time  after  its  service  witliin 
which  the  act  must  be  done,  and  the  copy  served  nmst 
bear  an  indorsement  notifying  the  defendant  that  if  he 
neglects  to  obey  the  decree  by  the  time  therein  desig- 
nated, he  will  be  liable  to  arrest  under  a  writ  of  attach- 

'  ronuroy's  Kij.  .lur.,  sec.  1.S17;  lugersoll's  Barton's  Suit  in  Equity.  l.">3. 
=  White  r.  Iroraonlt,  1  Edw.  Ch.  336;  Jones  r.  Boston  Mill  Corp.,  4  Tick. 
507;  K)  Am.  Doc.  3o8. 

3  Lube's  Eq.  ri.  174;  Daiiiell's  Ch.  Pr.,  4th  Am.  ed.,  1043. 


13  DEFINITIOXS  AND  CLASSIFICATIONS.  |  S« 

ment  "issued  out  of  the  liigli  court  of  chancery,  or  by 
the  sergeant- at-arins  atteiiclmj^  the  Bame  couil,"  and 
will  also  be  liable  to  have  his  estate  sequestered  for  the 
piiipose  of  compelling  his  obedience.'  After  the  copy 
i)t'  the  decree  has  been  duly  served,  and  the  time  lim- 
ited for  comi»liance  therewith  has  expired  without  such 
compliance,  the  complainant  is  entitled  to  a  writ  i>f  at- 
tachment. This  writ  is  directed  to  the  sheriff  or  some 
other  competent  officer  of  the  jurisdiction  in  which  the 
defendant  is  likely  to  Vie  found,  requirin*,'  him  to  attach 
the  bcxly  of  such  defendant  and  have  him  before  the 
court  at  a  time  designated,  to  answer  for  an  alleged 
contempt.'^  Under  this  writ  the  defendant  may  be  ar- 
rested and  lodged  in  prison,  and  suttered  to  remain  there 
until  he  has  purged  himself  of  his  contempt  by  obe- 
dience to  the  decree.*  Arrest  and  imprisonment,  in- 
cluding close  confinement  and  putting  in  irons,  seem 
down  to  the  end  of  the  reign  of  Charles  I.  to  have  con- 
stituted the  sole  means  of  compelling  obedience  to  a  de- 
cree.* These  means  might  prove  inefficient  because  the 
defendant  was  already  in  prison,  or  could  not  be  found 
or  apprehended,  or,  upon  being  arrested  and  impris- 
oned, preferred  remaining  in  custody  to  obeying  the 
decree.  If  the  defendant  was  already  in  prison,  a  writ 
of  habeas  corpus  cum  causus '"  could  be  obtained,  whereby 
the  keeper  of  the  prison  was  commanded  to  bring  the 
prisoner  into  court.     If  the  defendant  cannot  be  found, 

1  DanieM's  C\\.  Pr.,  4th  Am.  ed.,  1043. 

«  Dauiell's  Ch.  Fr.,  4th  Am.  ed.,  1046,  463;  Lube's  Eq.  PI.  174;  Ingersoll's 
Barton's  Suit  in  Equity,  152.  If  the  defendant  was  a  corporation,  and  therefore 
incapable  of  being  arrested,  its  action  was  coerced  by  a  distringas.  This  writ 
was  directed  to  the  sheriflf,  and  commanded  him  to  make  distress  of  the  lands, 
tenements,  goods,  and  chattels  of  the  defendant  within  his  bailiwick. 

»  Daniell's  Ch.  Pr.,  4th  Am.  ed.,  1047,  1032. 

♦  Spen;;e's  Ch.  Jur.  391. 

6  Elvardi'.  Wairen,  Ch.  R.  L5L 


§8a  DEFINITIONS  AND  CLASSIFICAIIOXS.  14 

a  return  of  non  est  inventus  is  made.  Upon  this  return, 
when  the  defendant  cannot  be  found,  or  upon  showing 
that  he  is  in  prison,  obstinate  and  disobedient,  where 
he  has  been  found,  a  writ  or  commission  of  seques- 
tration may  issue. ^  This  writ  is  directed  to  certain 
persons  therein  named  (usually  four),  and  empowers 
them  to  enter  upon  the  real  estate  of  the  disobedient 
person,  "and  to  receive,  sequestrate,  and  take  the 
rents  and  profits  thereof,  and  also  his  personal  estate, 
and  keep  the  same  under  sequestration  in  tlieir  hands 
until  he  shall  have  performed  the  act  required  and 
cleared  his  contempt.""  If  the  sequestrators  as- 
certain and  return  that  the  defendant  is  a  beneficed 
clerk,  without  lay  property,  a  writ  of  scquestrari  facias 
de  bonis  ecclesiastic  is  may  issue.  This  is  directed  to  the 
bishop  of  the  diocese,  and  under  it  the  defendant's 
benefice  msxy  be  sequestered.^  If  it  becomes  necessary 
or  advisable  for  the  sequestrators  to  sull  personal  effects 
seized  by  them,  such  sale  will  bo  authorized  by  the  court 
on  proper  application  therefor.^  If  the  decree  required 
the  delivery  of  tlie  possession  of  lands,  a  mandatory 
injunction  was  sometimes  issued,  commandin;j^  such  de- 
livery, wliere  defendant  remained  obstinate  in  prison, 
and  if  this  were  disobeyed,  a  commission  issued  to 
justices  of  the  peace  to  put  the  complainant  into  pos- 
session.^ If,  when  a  commission  issued  to  sequestra- 
tors, or  others,  under  whicli  it  was  necessary  fi>r  them 
to  take  possession  of  real  propert}^,  they  were  unable  to 

1  Ross  ('.  Colville,  3  Call,  3S2;  Speiice's  Ch.  Jur.  391;  LuIk':.;  Eq.  PI.  17(5. 

"  DanicU's  Ch.  Pr.,  4tli  Am.  e.l.,  lOoO,  1051;  Tathaiu  v.  Parker,-  1  Srnale  &. 
G.  i)\'.y;  Setou's  Forms  of  Decrees,  Judgments,  aud  Orders,  4tli  el.,  1577. 

^  DauieU's  Ch.  Pr.,  4th  Am.  ed.,  1051. 

*  DauieU's  Ch.  Pr.,  4th  Am.  ed.,  1054;  Setou's  Forms  of  Decrees,  Judgments, 
and  Orders,  4th  ed.,  1582. 

»  Spence's  Ch.  Jur.  392;  Lube's  Eq.  PI.  177. 


15  DEFINITIONS   AND  CLASSIFICATIONS.  8  8» 

otherwise  (jbtaiii  possession,  a  writ  of  assistance  issued 
in  their  aid/  Wliere  the  surrender  of  tlie  possession 
of  lands  to  a  complainant  or  other  person  was  ordered 
or  decreed,  this  writ  also  issued."  This  writ  is  now 
obsolete  under  the  English  practice.  It  was  issued  to 
put  a  party  in  possession,  upon  service  of  a  copy  of  the 
decree,  and  without  the  prosecution  of  any  proceedings 
for  contempt.  It  is  directed  to  the  sheriff  of  the 
county  wherein  the  lands  lie,  and  commands  him  to 
put  plaintiff  into  possession  pursuant  to  the  decree.^ 
In  England  the  functions  of  a  writ  of  assistance  are 
now  performed  by  tlie  writ  of  possession.*  Where  a 
decree  is  for  tlie  payment  of  money,  statutes  and  rules 
of  C(Hirt  have  been  enacted  or  adopted,  both  in  England 
and  in  this  country,  giving  authority  to  issue  the  writs 
appropriate  for  the  enforcement  of  a  like  judgment  at 
law.  Under  these  statutes  satisfaction  of  a  decree  may 
be  sought  by  an  elegit,  a  fieri  facias,  or  a  capias  ad 
safisfaciendmn,  in  any  case  where  such  writ  would  be 
proper  had  the  recovery  been  at  law  instead  of  in 
equity.^  In  England,  if,  upon  return  of  an  elegit  or 
fieri  facias,  it  appears  that  defendant  is  a  beneficed 
clerk,  without  lay  property  subject  to  the  writ,  the 
plaintiff  maj^  have  *' one  or  more  writs  of  fieri  facias  de 
bonis  ecclesiastic  is,"  ^  whereby  the  sheriff  is  authorized 
to  levy  the  damages  and  costs  out  of  the  defendant's 

1  Darnell's  Ch.  Pr.  1056;  Spence's  Cli.  Jur.  392;  Seton's  Forms  of  Decrees, 
Judgments,  aud  Orders,  4tli  ed.,  1562;  Pelham  v.  Newcastle,  .3  Swa^.  2S9,  note. 

2  Ludlow  V.  Johnson,  Hopk.  Ch.  231;  Kersliaw  v.  Thompson,  4  Johns.  Ch. 
231. 

3  Daniell's  Ch.  Pr.  1062. 

*  Seton's  Forms  of  Decrees,  Judgments,  and  Orders,  4th  ed.,  1563. 
^Daniell's  Ch.  Pr.,  4th  Am.   ed.,  1042;  Brockway  v.  Copp,  2  Paige,  580; 

Brysoa  v.  Petty,  1  Bland,  1S3;  Shackleford  v.  Apperson,  6  Gratt.  453;  Seton'a 
Forms  of  Decrees,  Judgments,  and  Orders,  4th  ed..  1555.  1560,  1561. 

*  Daniell's  Ch.  Pr.  1065. 


§9  DEFIXITIONS  AND  CLli5SIFICATI0XS.  16 

ecclesiastical  goods.  Final  process  to  enforce  decrees 
is  provided  for  by  the  eighth  and  ninth  rules  of  prac- 
,tice  for  the  courts  of  equity  of  the  United  States. 
Under  these  rules  an  execution  on  a  decree  for  the 
payment  of  money  may  be  in  the  form  used  in  actions 
of  assumpsit  at  common  law.  Other  decrees  are  en- 
forced by  attachment  and  sequestration.^ 

§  9.  Classification  of  the  Subject. — We  have  now 
described  the  principal  writs  of  execution  employed  at 
law  or  in  equity,  or  introduced  by  statutes.  Most  of 
the  terms  which  we  have  attempted  to  define  have 
ceased  to  have  any  place  in  the  jurisprudence  of  the 
greater  portion  of  the  United  States.  Bcntham  re- 
proached the  legal  procedure  of  his  time  b}-  the  follow- 
ing assertion, — an  assertion  no  doubt  well  supported  in 
fact:  "In  the  sciences  we  always  go  on  simplifying  the 
processes  of  our  predecessors;  in  jurisprudence  we  al- 

^  These  rules,  8  and  9,  are  as  follows:  — 

Rule  8.  Final  process  to  execute  any  decree  may,  if  flic  decree  be  solely 
for  the  payment  of  money,  be  by  M'rit  of  execution,  in  the  form  used  in  the 
circuit  court  in  suits  at  counnou  law  in  actions  of  a^tsumpail.  If  the  decree  he 
for  the  performance  of  any  spccihc  act,  as,  for  example,  for  the  execution  of  a 
conveyance  of  land  or  the  delivering  up  of  deeds  or  other  documents,  the  de- 
cree shall,  in  all  cases,  prescribe  tlic  time  within  which  the  act  shall  be  done, 
of  which  the  defendant  shall  be  bound  withoiit  further  service  to  take  notice; 
and  upon  aflidavit  of  the  plaintiff,  liled  in  the  clerk's  oflScc,  that  the  same  has 
not  been  complied  with  witliin  the  ^jrescribed  time,  the  clerk  shall  issue  a  writ 
of  attachment  against  the  delinquent  party,  from  Avhich,  if  attached  thereon, 
he  shall  not  be  discharged,  unless  upon  a  full  compliance  with  the  decree  and 
the  payment  of  all  costs,  or  upon  a  special  order  of  the  court  or  of  a  judge 
thereof,  upon  motion  and  affidavit,  enlarging  the  time  for  the  performance 
thereof.  If  the  delinquent  party  cannot  be  found,  a  writ  of  sequestration  shall 
issue  against  his  estate  upon  tlie  return  of  non  est  inventm,  to  compel  obedience 
to  the  decree. 

Rule  9.  When  any  decree  or  order  is  for  the  delivery  of  possession  upon 
proof  made  by  affitlavit  of  a  demand  and  refusal  to  obey  the  decree  or  order, 
the  party  prosecuting  the  same  shall  be  entitled  to  a  writ  of  assistance  from 
the  clerk  of  the  court. 


17  DEFIXTTIONS  AND  CLASSIFICATIONS.  I  9 

ways  go  on  rendering  them  more  eomplicated,  Tlic 
arts  are  perfected  by  produeing  greater  efTects  with 
more  easy  means;  jurisprudence  is  deteriorated  by  mul- 
tiplying means  and  diminishing  effects."' 

The  American  law  of  executions  is  comparatively 
free  from  this  and  similar  reproaches.  Wlicn  a  judg- 
ment is  for  the  recovery  of  money,  we  do  not  in  most 
of  the  states  resort  to  one  form  of  execution  to  reach 
real  estate  and  another  form  to  reach  personal  property. 
But  by  one  writ  the  sheriff  is  commanded  to  levy  upon 
the  personal  property  of  the  defendant,  and  if  sutHcient 
personal  property  cannot  be  found,  then  upon  the  real 
estate.  In  cases  where  the  statute  so  authorizes,  the 
writ  may  contain  a  clause  directing  the  seizing  and  im- 
prisonment of  the  defendant. 

In  the  following  pages  we  shall  not  undertake  to 
treat  separately  of  each  of  the  several  writs  of  execu- 
tion heretofore  named,  but  shall  classify  and  consider 
our  subject  as  follows :  Part  1  will  treat  of  executions, 
writs,  and  proceedings  whose  object  is  to  obtain  the 
satisfaction  of  a  judgment  or  decree  out  of  the  defend- 
ant's estate,  real  and  personal,  or  to  compel  obedience 
to  a  decree  in  other  respects  than  the  payment  of  a 
sum  of  money;  part  2,  of  executions  against  the  person 
of  defendant;  and  part  3,  of  executions  to  recover  spe- 
cific property  adjudged  to  belong  to  the  plaintiff.  In 
each  of  these  parts  we  shall  endeavor  as  far  as  possible 
to  dispose  of  various  questions  in  the  order  in  which 
they  naturally  present  themselves  in  the  execution  of 
the  writ. 

^  Bentbam's  Judicial  Evidence,  by  Dumont,  ed.  of  1825,  p.  5. 
Vol.  I.— 2 


ISSUING  THE  ORIGINAL  EXECUTION.  .18 

CHAPTER  11. 

ISSUING  THE  ORIGINAL  EXECUTION. 

FIRST.  —  or  THE    COURTS  THiT   MAY  ISSUE  IT. 

§  10.  General  rule. 

§  1 1.  Of  American  courts. 

§  12.  Courts  ceasing  to  exist. 

§  13.  Removal  of  record  from  one  court  to  another. 

§  14.  On  transcripts  from  other  courts. 

§  15.  Efifect  of  issue  from  wrong  court. 

SECOND.  — OF  THE  JUDGMENTS  ON   WHICH    IT  MAT  ISSXTS. 
§  16.     General  rule  as  to  judgments. 
§  17.     Orders  and  rules  of  court. 
§  18.     Lost  or  mutilated  judgment  records. 
§  19.     Satisfied  or  merged  judgments. 
§  20.     Void  judgments. 

THIRD. — FOR   AND  AGAINST   WHOM,    AND  PY   WHOM  ISSUED. 

§  21.     Wlio  may  sue  out,  and  how  he  may  compel  issuance  of. 
§  22.     Against  whom  may  issue. 
§  23.     By  whom  issued. 

FOURTH.  —  TIME  FOR   ISSUING. 
§  24.     Tlie  earliest  time  for  issuing. 
§  25.     Consequence  of  premature  issuing. 

§  26.     Consecpiencc  of  issuing  before  expiration  of  stay  by  agreement. 
§  27.     The  latest  time  for  issuing. 

§  27  a.     Issuing  on  motion,  instead  of  resorting  to  scire  facias. 
§  28.     The  latest  time  for  issuing,  how  computed. 
§  29.     Validity  of  executions  on  dormant  judgments. 
§  30.     Validity  of  executions  on  dormant  judgments  ais  between  the  parties. 

FIFTH. — SUSPENSION   OF  THE  RIGHT  TO  ISSUE   EXECUTION. 

§  31.  By  issue  of  another  writ. 

§  32.  By  stay  of  execution. 

§  33.  Issue  contrary  to  stay. 

S  34.  By  stay  laws,  constitutionality  of. 

§  35.  By  death  of  sole  plaintiff  or  defendant. 

§  36.  By  death  of  one  of  several  plaintiffs  or  defendants. 

§  37.  Abatement  of  writ  by  death. 

§  37  a.     Issuing  execution  to  enforce  decrees. 


19  ISSUING  THE  ORIGINAL  EXECUTION.  §  lo 

§  37  b.  Issaing  attachment  to  enforce  decrees. 

§  37  c.  Issuing  writ  of  Bequestration. 

§  .37  d.  Writs  of  assistance,  for  and  against  whom  may  be  iaaued. 

§  3/  e.  Writs  of  asaiatauce,  jiroceedinga  to  obtain. 

§  10.    Of  the  Courts  that  may  Issue —General  Rule. 
—  Probably  the  very  first  question  to  be  answered  in 
recrard  to  tlio  proposed  issuing  of  an  execution  is  this: 
Docs  the  court  wherein  the  judgment  has  been  entered 
have  authority  to  enforce  its  judgments  by  the  aid  of 
this  writ  ?     And  here  it  may  be  remarked  that  a  jud.r. 
mcnt  at  law,  disconnected  from  the  right  to  issue  execu- 
tion, would  be  so  idle  and  worthless  a  record  that  we  can 
scarcely  conceive  that  its  creation  would  be  encouraged 
or  its  existence  tolerated.     A  tribunal  invested  with 
the  pmver  to  call  htigants  before  it,  and  to  adjudge  that 
one  of  them  recover  of  the  others  certain  specific  prop- 
erty or  a  certain  compensation  in  nioney,  and  yet  with- 
out any  authority  to  make  its  decision  effective,  would 
be  the  arena  of  such  solemn  trifling  that  nothin-  but 
the  most  positive  declaration  made  by  the  law  creating 
such  court  could  convince  us  of  its  legal  existence.     It 
may  be  assumed,  as  a  general  proposition,  that  every 
jucUcial  tribunal  having  jurisdiction  to  pronounce  judg- 
ment has  authority  to  award  execution.     Exceptions  to 
this  rule  must  rest  upon  some  clear  and  positive  statu- 
tory limitation.      -  If  a  court  is  competent  to  pronounce 
judgment,  it  must  be  equally  competent  to  issue  execu- 
tion to  obtain  its  satisfaction.     A  court  without  the 
means  of  executing  its  judgments  and  decrees  would  be 
an  anomaly  in  jurisprudence,  not  deserving  the  name 
of  a  judicial  tribunal.     It  would  be  idle  to  adjudicate 
what  could  not  be  executed,  and  the  power  to  pronounce 
necessarily  imphes  the  power  of  executing." '    But  there 

*  United  States  v.  Drennan,  Hemp.  325. 


§  10  ISSUING  THE  ORIGINAL  EXECUTION.  20 

were,  nevertheless,  judicial  tribunals  which  did  not  pos- 
sess authority  to  issue  writs  of  execution  against  the 
property  of  the  defendant.  The  most  important  of 
these  tribunals  was  the  court  of  ch-ancery.  This  court 
did  not,  however,  undertake  to  pronounce  a  formal  judg- 
ment directing  that  one  party  should  recover  of  another. 
It  did  not  assume  to  deal  with  the  legal  rights  of  the 
parties.  It  undertook  to  decide  what  was  due  from  one 
party  to  the  other,  not  according  to  law,  but  accord- 
ing to  conscience.  It  then  attempted  to  coerce  the 
party  adjudged  to  be  in  the  wrong  into  acting  as  be- 
came a  conscientious  man.  Its  decrees,  unless  for  land, 
operated  solely  in  personam,^  and  were  enforced  solely 
b}^  means  of  process  for  contempt,  under  which  a  dis- 
obedient party  could  be  imprisoned  until  he  became 
obedient.  If  he  could  not  be  seized,  or  if,  being  seized 
and  imprisoned,  he  still  refused  to  comply  with  the  de- 
cree, the  court  could  issue  a  writ  of  sequestration  under 
which  commissioners  named  in  the  writ  sequestered  "the 
personal  property  of  the  defendant,  and  the  rents  and 
profits  of  his  real  estate,  and  kept  him  from  the  enjoy- 
ment of  them  till  he  had  cleared  his  contempt."  The 
English  courts  of  chancery,  by  the  statute  1  and  2 
Vict.,  c.  110,  sec.  18,  are  authorized  to  issue  execu- 
tions in  certain  cases.^    In  order  that  a  decree  in  clmn- 

1  DanieU's  Ch.  Pr.,  4th  Am.  ed.,  1031;  Noonan  v.  Lee,  2  Black,  499;  Orchard 
V.  Hughes,  1  Wall.  73. 

■■^  This  statute  enacts  "that  all  decrees  and  orders  of  courts  of  equity,  and 
all  rules  of  courts  of  common  law,  and  all  orderi  of  the  lord  chancellor  or  of 
the  court  of  review  in  matters  of  bankruptcy,  and  all  orders  of  the  lord  chan- 
cellor in  matters  of  lunacy  whereby  any  sum  of  money  or  any  costs,  charges, 
or  expenses  shall  be  payable  to  any  person,  shall  have  the  effect  of  judgments 
in  the  superior  courts  of  common  law,  and  the  persons  to  whom  any  such 
moneys  or  costs,  charges  or  expenses,  shall  be  payable,  shall  be  deemed  judg- 
ment creditors  within  the  meaning  of  this  act;  and  all  powers  hereljy  giren  to 
the  judges  of  the  superior  courts  of  common  law,  with  respect  to  matters  de- 
pending in  the  same  courts,  shall  and  may  be  exercised  by  courts  of  equity 


21  ISSUING  THE  ORIGINAL  EXECUTION.  §10 

eery  may,  b}'  virtue  of  the  provisions  of  this  statute, 
be  enforced  by  execution  against  the  defendant's  prop- 
erty, it  must  contain  the  substantial  elements  of  a  judg- 
ment at  common  law.  It  must  be  strictly  for  the 
payment  of  a  sum  of  money  from  one  person  to  an- 
other.^ The  rule  thus  introduced  into  the  English  law 
is  in  substantial  conformity  with  the  practice  adopted 
in  the  different  states,^  and  also  by  the  federal  courts.^ 
In  some  instances,  decrees  direct  the  sale  of  certain 
property,  and  make  the  defendant  responsible  for  the 
deficiency  remaining  after  the  proceeds  of  the  sale  have 
been  applied  to  the  payment  of  the  plaintiff's  demand. 
In  such  cases  the  amount  to  be  paid  by  defendant  is 
uncertain  and  contingent;  and  therefore  no  execution 
can  issue  against  him  until  the  sale  has  been  completed 
and  the  deficiency  ascertained.^     The  right  of  courts  of 

with  respect  to  matters  thereiu  depending,  and  by  the  lord  chancellor  in  the 
court  of  review  in  matters  of  banlcruptcy,  and  by  the  lord  chancellor  in  matters 
of  lunacy;  and  all  remedies  hereby  given  to  judgment  creditors  are  in  like  man- 
ner given  to  persons  to  whom  any  moneys  or  costs,  charges  or  expenses,  are  by 
such  orders  or  rules  respeckively  directed  to  be  paid. "  Executions  on  decrees 
under  this  ax;t  must  issue  out  of  the  chancery  and  not  out  of  the  common-law 
courts.     In  re  Stanford,  4  Scott  N.  R.  23;  3  Man.  &  G.  407;  6  Jur.  38. 

1  Gamer  v.  Briggs,  4  Jur.,  N.  S.,  230;  G  Week.  Rep.  378;  Earl  of  Mans- 
field V.  Ogle,  4  De  Gex  &  J.  38;  Shaw  v.  Neale,  20  Beav.  157,  174;  1  Jur.,  N.  S., 
GGG;  G  H.  L.  Cas.  541;  4  Jur.,  N.  S.,  G95;  Chadwick  v.  Holt,  8  De  Gex  M.  & 
G.  584;  2  Jur.,  N.  S.,  918. 

»  Battle  V.  Bering,  7  Yerg.  520;  Van  Ness  v.  Cantine,  4  Paige,  55;  Bryson 
t'.  Petty,  1  Bland,  183;  Broekway  v.  Copp,  2  Paige,  578;  Patrick  v.  Warner,  4 
Paige,  397;  Hall  v.  Dana,  2  Aiken,  381;  Otis  v.  Forman,  1  Barb.  Ch.  33;  Wal- 
len  r.  Williams,  7  Crauch,  G02;  Colman  v.  Cocke,  G  Rand.  G18;  McNair  v. 
Ragland,  2  Dev.  Eq.  42;  22  Am.  Dec.  728;  Coombs  v.  Jordan,  3  Bland,  321;  22 
Am.  Dec.  23G;  Bouslough  v.  Bouslough,  68  Pa.  St  495;  Geu.  Stata.  Ky.,  ecL 
1873,  p.  419,  art.  4,  sec.  1. 

'  By  eighth  cfjuity  rule  of  the  United  States  courts,  "final  process  to  exe- 
cute a  decree  may,  if  the  decree  be  solely  for  the  payment  of  money,  bo  by  writ 
of  execution,  in  the  form  ui*«l  by  the  circuit  courts  in  suits  at  common  law,  in 
actions  of  (u^umjinl."  Dcsty'u  Fed.  Proc.  27G.  An  additional  rule,  numbered 
92,  and  made  in  1HG4,  proridail  for  decree  and  execution  for  balance  due  after 
sale  in  foreclfk->ure  suits.     Desty's  Fed.  Proc.  310. 

♦  Bank  of  Ilocheater  r.  Emereon,  10  Paige,  115;  Cobb  v.  Thornton,  8  How. 
Pr.  06. 


§  11  ISSUING  THE  ORIGINAL  EXECUTION.  22 

law  to  issue  executions  may,  we  think,  be  successfully 
upheld  iu  all  eases  where  the  power  is  not  clearly  ^vith- 
liekl  by  statute.  The  authority  of  courts  of  chancery 
to  issue  writs  of  execution  similar  in  form  and  effect  to 
those  emplo3'ed  at  law,  is,  as  we  have  already  seen,  de- 
pendent upon  statutes  of  comparatively  recent  date; 
but  these  courts,  as  we  have  shown  in  the  preceding 
chapter,  have  for  a  long  period  issued  writs,  the  ulti- 
mate object  of  which  was  to  compel  obedience  to  their 
decrees,  and  all  of  which  were  in  effect,  as  one  of  them 
was  by  name,  a  writ  of  execution.  Tlicre  are  other 
courts  which  have  jurisdiction  to  bring  litigants  before 
them,  and  to  determine  what  is  due  from  one  to  the 
other;  and  which  yet  do  not  profess  to  enter  a  direct 
judgment  that  one  party  shall  recover  from  the  other. 
The  most  common  of  these  are  the  probate  or  surro- 
gate courts.  The  decisions  of  these  courts  are  res 
judicata;  they  permanently  establish  the  liability  of  the 
parties.  But  the  discharge  of  the  liability  thus  estab- 
lished cannot  be  compelled  by  execution,  unless  the 
statute  has  so  provided.^ 

§  11.    Of  the  Laws  GhDveming  American  Courts.  — 

The  authority  of  the  several  courts  of  each  state  to 
issue  executions  is  conferred  by  the  several  statutes, 
where  statutory  regulation  has  been  attempted;  and, 
in  the  absence  of  such  regulations,  by  the  rules  of  the 
common  law.  The  federal  judiciary,  on  the  other 
hand,  is  entirely  be^^'ond  the  control  of  state  laws. 
The  courts  of  the  United  States  issue  executions  under 
the  authorit}''  and  control  of  the  laws  enacted  by  Con- 
gress, of  the  rules  adopted  by  the  courts  themselves, 
and  of  the  provisions  of  the  common  law  and  chancery 

^  Stiles  V.  Smith,  5  Paige,  135. 


23  ISSUING  THE  ORIGINAL  EXECUTIOX.  §§  12,  13 

practice,  as  adopted  or  modified  by  the  United  States 
statutes  or  by  the  rules  of  court. ^ 

§  12.  Loss  of  Power  to  Issue  Execution.  —  If  the 
existence  of  a  tribunal  competent  to  pronounce  judg- 
ment necessarily  implies  the  existence  in  that  tribunal 
of  the  power  to  award  execution,  it  would  seem  to  fol- 
low, as  the  negative  of  this  proposition,  that  the  de- 
struction of  the  tribunal  would  necessarily  carry  with. 
it  the  destruction  of  the  power.  When  a  court  has 
ceased  to  exist  by  the  repeal  of  the  act  by  which  it 
was  created,  it  no  longer  has  any  authority  to  issue 
executions.^ 

§  13.  Removal  of  Record  to  Another  Court. —  Or- 
dinarily, the  court  where  the  judgment  is  entered  must 
issue  execution.^  This  coui't  may,  however,  continue 
in  existence  with  its  general  power  unimpaired,  and  yet 
its  power  to  issue  execution  may,  in  a  particular  case, 
be  suspended  or  destro3'ed.  The  most  familiar  illustra- 
tion of  this  is  in  the  case  of  an  appeal  to  some  higher 
tribunal.  Here,  although  the  appellate  court  may  have 
affirmed  the  judgment,  the  court  of  original  jurisdiction 

>  Wayman  r.  Southard,  10  Wheat.  1;  Tolan.l  v.  Spraguc.  12  Pet.  300;  Boyle 
V.  Zacharic,  C  Pet.  G48;  Gwin  r.  Breedlove,  2  How.  29;  The  Steamer  St.  Law- 
rence, 1  Black,  r>22;  lUjbinaon  r.  Campbell,  3  Wlieat.  222;  Noonan  »•.  Lee,  2 
Black,  509;  McFarlia  r.  Gwiu,  3  How.  720;  Griffin  r.  Thompson,  2  How.  Mi. 
For  law  rcguhiting  executions  from  Unite<l  .SUitca  courts  in  coinnum  law  c.xses, 
•CO  Desty's  Fu.l.  Proc,  bcc.  91G;  17  U.  S.  Suts.  197;  on  jmlK'nicnta  f»r  duties, 
Detjty'a  Fed.  Proc.,  sec.  902;  13  U.  S  Stats.  494;  on  judgments  for  tlio  use  of 
the  United  SUtcs,  Desty,  sec.  9S0;  1  U.  S.  SUts.  51."};  on  judgimnts  for  Hues 
in  penal  or  criminal  causes,  Desty,  sec.  1041;  17  U.  S.  SUits.  lltS;  in  admiralty, 
see  A«lmiralty  llulo  21;  Desty,  p.  320;  in  equity,  boo  E<iuity  Rules  8  and  92, 
Deaty,  pp.  27ti,  310;  antr,  S  8  a,  note. 

»  Leo  r.  .Newkirk,  18  III.  550;  Newkirk  r,  ChaproD,  17  111.  34(3;  Harris  v. 
Conioll,  80  111.  54. 

•Com.  Dig,  tit.  Executions,  I;  Bac  Abr.,  tit.  E.xccutiomi,  E;  Bingham  uu 
JuJgmcDtji  an<l  Ejcecutiuua,  Ibl. 


§14  ISSUING  THE  ORICxINAL  EXECUTION.  24 

may  have  no  power  to  issue  execution.  According  to 
the  eouH non-law  rule,  whenever  upon  the  prosecution 
of  an  ai>peal  the  original  record  was  removed  into  an- 
other court,  that  court  alone  was  competent  to  issue 
execution.  In  other  words,  unless  some  statute  has 
interposed  to  modify  or  destroy  the  common-law  rule, 
the  court  having  custody  of  the  original  record  must 
issue  the  execution.^  In  the  United  States,  the  com- 
mon-law rules  in  regard  to  appeals,  including  the  rules 
providing  for  the  means  of  enforcing  the  judgments  of 
appellate  courts,  have  been  very  generally  displaced  or 
modified  by  statutory  provisions.  We  must,  therefore, 
refer  our  readers  to  the  different  state  statutes  for 
further  information  concerning  the  respective  powers  of 
courts  of  original  and  courts  of  appellate  jurisdiction  to 
issue  executions  on  judgments,  after  an  appeal  has  been 
prosecuted  to  final  judgment. 

^  14.    Executions  on  Transcripts  from  Other  Courts. 

—  It  is  not  unusual  for  statutes  to  be  enacted  author- 
izing the  filing  with  the  county  clerk  of  transcripts  of 
judgments  rendered  and  entered  by  justices  of  the 
peace,  and  providing  that  executions  may  issue  on  such 
transcripts  in  the  same  manner,  and  by  the  same  per- 
son or  officer,  as  though  the  judgment  were  rendered  in 
the  court  wherein  the  transcript  is  filed."  This  does 
not  transform  the  original  judgment  into  a  judgment  of 
the  higher  court,  except  for  the  purpose  of  issuing  and 
controllino"  execution.^     In  New  York  an  execution  on 

O 

>  TidiFri  Prac.  994;  Altman  v.  Johudon,  2  Mich.  N.  P.  42;  Allen  v.  Belcher, 
3  Gilm.  59G;  Cowperthwaite  v.  Owens,  3  Term  Rep.  G57;  Herbert  v.  Alcocke,  1 
Lev.  134;  Pringle  v.  Lansclale,  3  McCord,  289;  Vicars  v.  llayJon,  Cowp.  843; 
Com.  Dig.,  tit.  Execution.s,  I,  1. 

»  Ginochio  v.  Figari,  2  Abb.  Pr.  185;  4  E.  D.  Smith,  227. 

»  Peoijle  V.  Doe,  31  Cal.  220;  Martin  v.  Mayor  of  New  York,  11  Abb.  Pr. 
295;  20  How.  Pr.  86. 


25  ISSUING  THE  ORIGINAL  EXECUTION.  i  U 

such  a  transcript  of  judgment  may  be  issued  by  the 
])laintiff  or  his  attome}",  as  in  other  cases/  The  fihng 
of  the  transcript  does  not  prolong  the  Hfe  of  the 
original  judgment.  The  time  at  which  the  right  to 
execution  will  expire  must  be  computed  from  the  ren- 
dition of  the  judgment,  and  not  from  the  filing  of  the 
transcript.^  When  the  county  clerk  issues  execution 
to  enforce  the  judgment  of  a  justice  of  the  i^ace,  his 
authority  to  do  so  rests  upon  the  filing  of  the  transcript, 
and  upon  the  existence  of  such  other  facts  as  the  stat- 
ute has  prescribed.  Unless  it  can  be  shown  that  the 
law  was  substantially  complied  with,  the  act  of  the 
clerk  is  regarded  as  without  authority,  and  therefore 
as  void.^  A  true  copy  of  the  judgment,  followed  by  a 
certificate  in  the  following  form:  "I  certify  that  the 
foregoing  contains  an  entry  made  on  my  docket,"  and 
signed  by  the  justice  of  the  peace,  is  a  suflScient  tran- 
script.* Where  the  transcript  is  regular,  and  a  sale  has 
been  made  tlicreunder,  the  justice  will  not,  in  a  col- 
lateral proceeding,  be  allowed  to  show  that  an  execu- 
tion as  set  out  in  the  transcript  is  not  a  true  copy  of 
the  original.'^  So  there  are  statutes  autliorizing  tran- 
scripts of  judgments  to  be  sent  to  other  counties,  some- 
times for  the  purpose  of  making  such  judgments  liens 
in  the  counties  to  wliicli  the  transcripts  are  sent,  and 
sometimes  to  authorize  tlie  issue  of  execution  in  such 

>  McDonaM  r.  O'Flyiin,  2  Daly,  42.  The  case  of  Brush  v.  Lee,  18  Abb.  Pr. 
398,  holding  tliat  «uc!»  an  execut-oii  iimst  bo  i-isucil  by  the  clerk,  was  rcvcrseil 
by  tlie  court  of  apjjoah.  See  3(»  N.  Y.  49;  1  Traus.  App.  GG;  :5  Abb.  Pr.,  N.  S., 
204;  .'M  How.  Pr.  2S.3. 

■•'  KeriM  1'.  GravcH,  20  Cil.  1  ■">(). 

»(;.irr  r.  Youne,  :\{)  Mo.  'Mir,  00  Am.  Dec.  470;  Ruby  r.  Hann,  39  Mo. 
480;  Liii.li.rmaii  v.  IvIhoii.  2.")  M«i.  10.'>;  (.'ooncc  v.  Muudiy,  .'<  Mo.  ;J74;  Burk  v. 
Fbiuriiay,  4  Mo.  110;  Win.laud  v.  tooncc,  5  Mo.  29G;  32  Am.  Dec.  320. 

•  FranHO  r.  Owciih,  25  Mo.  .'i29. 

»  Crowljy  V.  Wallace,  12  Mo.  143. 


§14  ISSUING  THE  ORIGINAL  EXECUTION.  28 

county.  Whore  the  latter  is  the  object,  the  authority 
to  issue  execution  depends  on  coniphance  witli  the 
provision^  of  the  statute,  and  if  issued  in  the  absence 
of  such  compliance,  the  execution  is  void.^  Where  the 
former  object  is  the  only  one  at  which  the  statute  aims, 
the  power  to  issue  execution  is  confined  to  the  proper 
ofiicers  of  the  county  wherein  the  judgment  was  ren- 
dered. An  issuing  by  the  clerk  of  the  county  in  which 
the  transcript  is  filed  is  void."  In  many  instances,  the 
court  wherein  judgment  is  pronounced  is  authorized 
to  issue  its  execution,  in  certain  contingencies,  to  other 
counties.  Here  the  general  power  to  issue  the  writ  is 
confen-ed  by  the  judgment.  A  mistal^e  in  determining 
whether  the  proper  contingency  exists  is  an  error, 
which  may  be  corrected  by  some  appropriate  proceed- 
ing, such  as  by  motion  to  quash  or  recall  the  writ,  but 
cannot  render  the  writ  void.^ 

Under  a  statute  authorizing  the  clerk  of  the  circuit 
court  to  issue  execution  upon  certified  transcripts  of 
judgments  of  justices  of  the  peace,  upon  receiving  an 
affidavit  on  behalf  of  plaintiff  showing  that  the  judg- 
ment was  unpaid  in  whole  or  in  part,  and  stating  the 
amount  due,  an  execution  was  issued  without  such 
affidadt,  and  being  followed  by  a  sale,  the  question 
was,  whether  such  sale  was  invalid.  In  the  opinion  of 
the  court  the  issuing  of  the  writ  under  the  circum- 
stances was  a  mere  irregularity;    and  the  defendant 

1  Colville  V.  Neal,  2  Swan,  89;  Morgan  v.  Hannah,  11  Huinpb.  122;  Eason 
V.  Cummins,  11  Humph.  210. 

*  Seaton  r.  ILuniltou,  10  Iowa,  394;  Furman  v.  Dewell,  35  Iowa,  170;  Shat- 
tuck  V.  Cox,  97  lu.l.  242. 

»  Earle  v.  Thomas,  14  Tex.  583;  Sanders  v.  Russell,  2  T.  B.  Mon.  139;  15 
Am.  Dec.  148;  Cox  v.  Nelson,  1  T.  B.  Mon.  84;  15  Am.  Dec.  89;  Syclnor  v. 
Roberts,  13  Tex.  598;  65  Am.  Dec.  84;  McConnell  v.  Brown,  5  T.  B.  Mon. 
479;  Young  v.  Smith,  10  B.  Mon.  296;  Commonwealth  v.  O'Cuil,  7  J.  J. 
ilarsh.  119;  23  Am.  Dec.  393. 


27  ISSUING  THE  ORIGINAL  EXECUTION.  §15 

having  waived  the  iriTgularity  by  his  inaction,  the 
sale  was  pronounced  vaUd/  Where  by  statute  author- 
ity was  given  to  levy  a  justice's  execution  in  a  county 
other  than  that  in  which  it  issued,  on  procuring  a  cer- 
tificate from  a  justice  of  the  latter  county  that  he  knew 
the  handwriting  of  the  justice  issuing  the  execution,  a 
levy  upon  a  writ  issued  without  such  certificate  was 
adjudged  to  be  wholly  void."  When  authority  is  given 
to  the  clerk  of  a  circuit  court  to  issue  execution  to  any 
other  county  in  which  tlie  judgment  has  been  docketed, 
the  docketing  of  the  judgment  in  such  other  county  has 
been  held  by  the  supreme  court  of  Wisconsin  to  be  a 
prerequisite  to  the  issue  of  the  writ  to  such  county. 
It  is  even  said  that  the  fact  of  such  docketing  must  be 
recited  in  the  wTit,  on  the  ground  that  the  writ  must  on 
its  face  disclose  the  authority  for  issuing  it,  and  that 
failing  to  state  such  docketing,  it  discloses  no  authority 
whatsoever.'  By  the  statutes  of  iNIichigan,  an  execu- 
tion may  be  issued  by  a  justice  of  the  peace  at  tlie 
expiration  of  five  days  from  the  rendition  of  his  judg- 
ment; and  whenever  an  execution  may  issue,  an  affida- 
vit may  be  made,  and  a  transcript  of  the  judgment  and 
proceedings  filed  in  the  circuit  court.  A  transcript  filed 
before  the  expiration  of  the  five  days  is  unauthorized 
by  the  statute,  and  no  valid  execution  can  issue 
thereon.* 

§  15.    Executions  Issued  out  of  Wrong  Court. — 

Executions  issued  l)y  one  court  to  enforce  tlic  judg- 
ments of  another  court,  when  there  was  no  authority 

»  Mavity  v.  Ea-itri.lgc,  fi?  lti<l.  211. 

»  Street  r.  McClcrkin,  77  Ala.  580. 

»  Keiitzler  r.  ('.  .M.  &  St.  V.  R'y  Co.,  47  Mo.  Gtl. 

*  O'Brien  i'.  O'Brien,  42  Mich.  15;  V'romou  r.  Tbompson,  42  Midi.  145. 


§  15  ISSUING  THE  ORIGINAL  EXECUTION.  28 

SO  to  do,  have  been  regarded  as  absolute  nullities.^  In 
New  York,  an  exeeution  issued  out  of  the  supreme  court 
ou  a  jutlo-meut  in  the  court  of  coninion  pleas.  A  sale 
was  made  under  this  writ,  and  thereafter,  to  aid  the 
title  based  on  this  sale,  the  common  pleas  ordered  the 
writ  to  bo  amended  so  as  to  make  it  an  execution  of 
the  court  of  common  pleas.  The  writ  and  the  sale 
thereunder  were,  nevertheless,  treated  as  void  when 
brought  in  question  in  an  action  of  ejectment  based 
thereon."^ 

^  Field  (•-,  Paulding,  3  Abb.  Pr.  139;  1  Hdt.  187;  Shattuck  v.  Cox,  97  Ind. 
24-2. 

-  Clarke  v.  Miller,  18  Barb.  270.  The  following  is  from  the  opinion  of  the 
court  in  this  case:  "The  rule  is  a  familiar  one,  that  judgments  must  be  exe- 
cuted in  those  courts  in  which  they  are  rendered.  I  do  not  see  upon  what 
piiaciple  the  supreme  court  could  assume  to  execute  this  judgment  recovered 
in  the  common  jileas.  The  supreme  court  possessed  no  power  to  award  a  JieH 
Jucia-i  upon  that  judgment,  and  every  execution  that  is  issued  by  the  attorney 
is  raganled  in  law  as  awarded  by  the  court  out  of  which  it  issues  just  as  much 
as  if  the  award  was  made  upon  the  record.  It  strikes  me  as  a  strange  proceed- 
ing for  the  supreme  court  to  award  an  execution  to  the  sheriff,  commanding 
him  to  collect  a  judgment  of  the  county  court;  and  I  entertain  no  doubt  but 
such  an  execution  is  absolutely  void.  But  what  is  more  strange  still,  after  the 
s'.ierifiF  has  executed  it,  and  sold  the  lands  of  the  defendant,  and  given  a  deed  to 
th:;  purchaser,  the  county  court  assume  to  say.  We  will  interfere  with  the  pro- 
cess of  the  supreme  court,  because  that  court  has  undertaken  to  execute  our 
julgment;  and  so  by  an  order  the  county  court  change,  I  suppose,  an  execu- 
tion of  the  supreme  court,  which  has  been  fully  executed  and  returned,  into  a 
prooess  of  the  county  court,  and  declare  in  effect  that  the  child  is  theirs,  al- 
thoug'i  they  had  no  hand  in  begetting  it.  Tiie  rule  is  a  familiar  one  that 
every  court  can  amend  its  own  process.  It  is  said  to  be  a  power  incidental  to 
ever/  court.  It  is  no  more  than  assuming  the  power  to  correct  its  own  pro- 
ce3  lings;  but  I  am  not  aware  of  any  power  in  the  county  court  to  amend  the 
proces3  of  the  supreme  court.  This  process,  being  void,  is  not  amendable.  In 
Si.n  in  V.  Gurney,  1  Petersdorf 's  Abr.  595,  where  a  fieri  facuut  was  issued  upon 
a  ju  Igment  in  the  common  jdeas,  returnable  in  the  king's  bench,  but  the  writ 
was  I'ejitcd  in  the  name  of  the  chief  justice  of  the  common  pleas,  the  court 
allo'.ved  the  writ  to  be  amended  by  making  it  returnable  in  the  common 
plan;  placing  their  decision  upon  the  express  grounds  that  as  the  writ 
was  teHtfitl  iu  the  name  of  the  chief  justice  of  the  common  pleas,  there  was 
som  iiing  to  amend  by.  The  reason  why  void  process  cannot  be  amended  is, 
iherj  is  nothing  to  amend  by."    But  see  Matthews  v.  Thompson,  3  Ohio,  272. 


29  ISSUIXCt  THE  ORIGINAL  EXECUTION.  §  IG 

§16.  On  "What  Judgments. — Conceding  that  the 
court  has  general  authority  to  issue  executions,  and 
that  nothing  has  occurred  to  suspend  such  authority, 
it  is  now  necessary  to  inquire  whether  the  judgment  is 
one  in  reference  to  which  this  power  of  the  court  can 
properly  be  invoked;  or  in  other  words,  on  what  judg- 
ments may  executions  issue?  The  general  answer  to 
this  question  is,  that  the  judgment,  though  it  need  not 
contain  a  formal  award  of  execution,^  must  be  final,"' 
and  nmst  in  form  be  sufficient  to  enable  a  court  by  in- 
spection to  determine  what  has  been  awarded,  from 
whom  the  award  is  to  be  recovered,  and  to  whom  it  is 
due.^  Because  it  does  not  sufficiently  indicate  for 
whom  the  recovery  is  to  be  made,  no  execution  can 
issue  on  a  judgment  in  favor  of  "the  legatees  of  P. 
J.,"'*  nor  in  favor  of  "the  officers  of  the  circuit  court  of 
M."  ^     But  this  rule  does  not  apply  to  a  judgment  in 

1  Little  V.  Cook,  1  Aik.  36:^;  15  Am.  Dec.  698. 

2  Truett  r.  Lcgg,  32  M.I.  150;  4  Wait's  Trac.  2. 

*  As  to  form  of  judgments,  see  Freeman  on  Judgments,  sec.  4G-55.  If  the 
judgment  is  final  and  is  sutlicient  in  form,  an  execution  may  issue,  irrespective 
of  the  character  of  the  judgment.  Thompsons.  Ferryman,  45  Ala.  019;  Orrok 
r.  Orrok,  1  Mass.  341;  French  v.  French,  4  Mass.  587;  Howard  r.  Howard,  15 
Mass.  19G;  Reynolds  v.  Lowry,  G  Pa.  St.  405;  Bank  of  Chester  v.  Ralston,  7  Pa. 
St.  482.  No  execution  can  issue  on  a  judgment  condemning  lands  and  award- 
ing a  sum  to  be  paid  therefor.  The  plaintilf  may  not  wisli  to  take  the  land  at 
tlie  price  awarded.  If  he  does  not  so  wish,  there  is  nothing  compulsory  in  the 
nature  of  the  jmlgment.  Cliicago  &  M.  R.  R.  Co.  ?'.  Bull,  20  111.  21S;  Cook  i>. 
Commissioners,  01  111.  115.  In  saying  that,  a.s  a  general  rule,  an  execution 
may  i.ssue  on  any  tinal  judgment,  we  must  he  understood  as  assuming  that  the 
judgment  is  not  void.  A  void  judgment  is  in  legal  contemplation  no  judg- 
ment. Freeman  on  Judgments,  sec.  117.  An  execution  issued  on  a  void 
judgment  and  an  execution  issued  without  any  judgment  arc  aliko  invalid,  for 
neither  haa  any  legal  foundation  on  which  to  rest.  All>eo  ?'.  Ward,  8  Mass. 
79;  Nahours  v.  Cocke,  24  Miss.  44;  Fithian  v.  Monks,  43  Mo.  502;  Gelston 
f.  Thompson,  29  Md.  595;  Mulvey  v.  Carpenter,  8  Chic.  L.  N.  171;  Rol*- 
erta  v.  St<.weri»,  7  Budi,  295;  Morris  t*.  Hogle,  37  HI.  150;  Jolinson  v.  Baker, 
38  111.  98;  ChfuvJ  r.  Dana,  44  111.  202. 

*  .luseph  I'.  .IcMcph,  5  Ala.  2S0. 

»  Patterson  v.  The  Ofliccrs,  1 1   Ala.  742. 


§17  ISSUING  THE  ORIGINAL  EXECUTION.  30 

favor  of  C  "for  the  use  of  the  officers  of  the  court"; 
for  here  tlie  plaintiff  is  distinctly  specified,  and  the 
other  words  may  bo  rejected  as  surplusage.^  The  judg- 
ment nmst  also  warrant  the  kind  of  execution  issued. 
Hence  no  execution  in  personam  can  issue  on  a  judg- 
ment in  rem."  But  if  the  judgment  be  in  personam, 
and  also  authorize  the  sale  of  certain  property  for  its 
satisfaction,  the  plaintiff  is  not  compelled  to  avail  him- 
self of  this  property,  but  may  take  out  an  ordinary  exe- 
cution, aad  levy  upon  other  property  belonging  to  the 
defendant.^ 

§  17.  Executions  on  Orders  and  Rules  of  Court.  — 
While  at  common  law  it  was  a  well-settled  rule  "that 
in  all  cases  a  judgment  shall  precede  execution,"*  yet 
this  rule  is  now  subject  to  many  statutory  innovations. 
In  England,  as  we  have  seen,^  the  same  statute  wliich 
enabled  courts  of  chancery  to  issue  execution  on  final 
decrees  authorized  rules  of  courts  of  law  and  orders  in 
chancery  to  be  enforced  by  execution.  Under  this 
statute  these  orders  and  rules  are  given  the  effect 
of  judgments.  Executions  may  therefore  be  issued 
thereon  without  first  applying  to  the  court  for  permis- 
sion.® In  one  respect,  these  rules  and  orders  are  more 
favored  than  final  judgments  and  decrees;   for  when 

1  McElhaney  v.  Flynn,  23  Ala.  820.  If  the  amount  of  the  jntlgment  is  not 
certain  when  entered,  as  if  judgment  be  for  the  penalty  in  a  bond  to  be  re- 
leased on  payment  of  a  smaller  sum,  execution  can  only  be  for  such  smaller 
sum  (Sprague  v.  Seymour,  15  Johns.  474),  and  cannot  issue  till  the  jud;Tment 
has  been  made  certain  by  ascertaining  that  sum.  Fitzhugh  v.  Blake,  2  Cranch 
C.  C.  37;  Rusk  v.  Sackett,  28  Wis.  400. 

2  Chapman  v.  Lemon,  11  How.  Pr.  239. 

3  Bennett  t^.  Morehouse,  42  N.  Y.  191. 

*  Washington  v.  Ewing,  Mart.  &  Y.  47. 

*  See  §  10. 

8\Vallis  V.  Sheffield,  7  Dowl.  P.  C.  793;  3  Jur.  1002,  Exch.;  Harrison  v. 
Hampson,  5  Dowl.  &  L.  4S4;  4  Com.  B.  745;  17  L.  J.  Com.  P.  147 


31  ISSUING  THE  ORIGINAL  EXECUTION.  §  18 

more  than  a  year  and  a  day  have  elapsed  since  their 
entry,  no  scire  facias  nor  special  leave  is  necessary  to 
authorize  the  issuing  of  execution/  But  the  order  or 
rule  on  which  the  execution  is  based  must  be  uncon- 
ditional/^ and  made  after  notice  to  the  party  to  be 
charo-ed.^  So  in  the  United  States,  under  statutes 
similar  to  the  English  statute  just  referred  to,  execu- 
tions may  be  issued  upon  unconditional  orders  of  court 
for  the  payment  of  money.* 

By  this  means  the  purchaser  under  a  decree  in  chan- 
cery is  sometimes  brought  before  the  court  by  motion 
in  the  original  suit,  and  compelled  to  pay  his  bid.^ 

In  some  of  the  states,  when  an  action  has  been  ' 
finally  determined,  and  fees  due  to  the  court  officials  or 
some  of  them  remain  unpaid,  the  clerk  of  the  court  has 
power  to  issue  execution  for  the  collection  of  such  un- 
paid fees.  In  such  cases  the  order  of  the  court  taxing 
the  costs,  or  the  mere  cost  bill  properly  verified  or 
authenticated,  where  such  order  is  not  required,  stands 
in  the  place  of  the  judgment,  at  least  so  far  as  to  war- 
rant and  support  such  execution.® 

§  18.    Executions  on  a  Lost  or  Destroyed  Record. 

—  A  judgment  is  the  sentence  of  the  law  pronounced 

1  la  re  Spooner,  11  Q.  B.  136;  17  L.  J.,  N.  S.,  Q.  B.  C8. 

2  Gibbs  V.  Flight,  13  Com.  B.  803;  17  Jur.  1034;  22  L.  J.  Com.  P.  105G. 

s  Rickards  v.  Patterson,  8  Mees.  &  W.  313;  10  L.  J.  Ex.  272;  5  Jur.  894. 

*Cal.  Code  Civ.  Proc,  sec.  1007;  Ark.  Dig.,  ed.  of  1858,  p.  499,  sec.  1; 
Code  of  Iowa,  sec.  3026. 

*  Atkinson  v.  Richardson,  18  Wis.  246;  Blackmore  v.  Barker,  2  Swan,  342. 

«  Clerk's  Office  v.  Allen,  7  Jones,  156;  Sheppard  v.  Bland,  87  N.  C.  163.  In 
California  an  execution  may  issue  for  costs  on  appeal  without  any  order  or 
judgment  fixing  tlieir  amount.  Section  1034  of  the  Code  of  Civil  Procedure  is 
as  follows:  "Whenever  costs  are  awarded  to  a  party  by  an  appellate  court,  if  he 
claims  such  costs,  he  nmst  within  thirty  days  after  the  rcmiUltur  is  filed  with 
the  cleik  below  deliver  to  such  clerk  a  memorandum  of  his  costs,  verified  as 
prescribed  by  the  preceding  section,  and  thereupon  he  may  have  an  execution 
therefor  as  upon  a  judgment." 


§17  ISSUING  THE  ORIGINAL  EXECUTION.  30 

favor  of  C,  "for  the  use  of  the  officers  of  the  court"; 
for  here  tlie  plaintiff  is  distinctly  specified,  and  the 
other  words  may  bo  rejected  as  surplusage/  The  judg- 
ment must  also  warrant  the  kind  of  execution  issued. 
Hence  no  execution  in  'personam  can  issue  on  a  judg- 
ment in  remr  But  if  the  judgment  be  in  personam, 
and  also  authorize  the  sale  of  certain  property  for  its 
satisfaction,  the  plaintiff  is  not  compelled  to  avail  him- 
self of  this  property,  but  may  take  out  an  ordinary  exe- 
cution, an,d  levy  upon  other  property  belonging  to  the 
defendant.^ 

§  17.    Executions  on  Orders  and  Rules  of  Court.  — 

While  at  common  law  it  was  a  well-settled  rule  "that 
in  all  cases  a  judgment  shall  precede  execution,"*  yet 
this  rule  is  now  subject  to  many  statutory  innovations. 
In  England,  as  we  have  seen,''*  the  same  statute  which 
enabled  courts  of  chancery  to  issue  execution  on  final 
decrees  authorized  rules  of  courts  of  law  and  orders  in 
chancery  to  be  enforced  by  execution.  Under  this 
statute  these  orders  and  rules  are  given  the  effect 
of  judgments.  Executions  may  therefore  be  issued 
thereon  without  first  applying  to  the  court  for  permis- 
sion.°  In  one  respect,  these  rules  and  orders  are  more 
favored  than  final  judgments  and  decrees;   for  when 

1  McElhaney  w  Flynn,  23  Ala.  820.  If  the  amount  of  the  judgment  is  not 
certain  \dien  entered,  as  if  judgment  be  for  the  penalty  in  a  bond  to  be  re- 
leased on  payment  of  a  smaller  sum,  execution  can  only  be  for  such  smaller 
sum  (Sprague  v.  Seymour,  15  Johns.  474),  and  cannot  issue  till  the  judyjment 
has  been  made  certain  by  ascertaining  that  sum.  Fitzhiigh  v.  Blake,  2  Cranch 
C.  C.  37;  Rusk  v.  Sackett,  2S  Wis.  400. 

2  Chapman  v.  Lemon,  11  How.  Pr.  239. 

*  Bennett  t».  Morehouse,  42  N.  Y.  191. 

*  Washington  v.  Ewing,  Mart.  &  Y.  47. 
^  See  §  10. 

«  Wallis  V.  Sheffield,  7  Dowl.  P.  C.  793;  3  Jur.  1002,  Exch. ;  Harrison  v. 
Hampson,  5  Dowl.  &  L.  484;  4  Com.  B.  745;  17  L.  J.  Com.  P.  147 


31  ISSUTXG  THE  ORIGINAL  EXECUTION.  §  18 

more  than  a  year  and  a  day  have  elapsed  since  their 
entry,  no  scire  facias  nor  special  leave  is  necessary  to 
authorize  the  issuing  of  execation/  But  the  order  or 
rule  on  which  the  execution  is  based  must  be  uncon- 
ditional,"^ and  made  after  notice  to  the  party  to  be 
charged.^  So  in  the  United  States,  under  statutes 
similar  to  the  English  statute  just  referred  to,  execu- 
tions may  be  issued  upon  unconditional  orders  of  court 
for  the  payment  of  money.'* 

By  this  means  the  purchaser  under  a  decree  in  chan- 
cery is  sometimes  brought  before  the  court  by  motion 
in  the  original  suit,  and  compelled  to  pay  his  bid.^ 

In  some  of  the  states,  when  an  action  has  been  ■ 
finally  determined,  and  fees  due  to  the  court  officials  or 
some  of  them  remain  unpaid,  the  clerk  of  the  court  has 
power  to  issue  execution  for  the  collection  of  such  un- 
paid fees.  In  such  cases  the  order  of  the  court  taxing 
the  costs,  or  the  mere  cost  bill  properly  verified  or 
authenticated,  where  such  order  is  not  required,  stands 
in  the  place  of  the  judgment,  at  least  so  far  as  to  war- 
rant and  support  such  execution.® 

§  18.    Executions  on  a  Lost  or  Destroyed  Record, 

—  A  judgment  is  the  sentence  of  the  law  pronounced 

1  la  re  Spooner,  11  Q.  B.  136;  17  L.  J.,  N.  S.,  Q.  B.  G8. 

2  Cibbs  V.  Flij/ht,  13  Com.  B.  803;  17  Jur.  1034;  22  L.  J.  Com.  P.  105G. 

s  Rickards  v.  Patterson,  8  Mees.  &  W.  313;  10  L.  J.  Ex.  272;  5  Jur.  894. 

*Cal.  Code  Civ,  Proc,  sec.  1007;  Ark.  Dig.,  ed.  of  1858,  p.  499,  sec.  1; 
Code  of  Iowa,  sec.  3026. 

*  Atkinson  v.  Richardson,  18  Wis.  246;  Blackmore  v.  Barker,  2  Swan,  342. 

^  Clerk  s  Office  v.  Allen,  7  Jones,  156;  Sbeppard  v.  Bland,  87  N.  C.  163.  In 
California  an  execution  may  issue  for  costs  on  appeal  without  any  order  or 
judgment  fixing  their  amount.  Section  1034  of  the  Code  of  Civil  Procedure  is 
as  follows:  "  Whenever  costs  are  awarded  to  a  party  hy  an  appellate  court,  if  he 
claims  such  costs,  he  must  within  thirty  days  after  the  rcmitlitur  is  filed  with 
the  clerk  bchiw  deliver  to  sucli  clerk  a  memorandum  of  his  costs,  verified  as 
prescribed  by  the  preceding  section,  and  thereupon  he  may  have  an  execution 
therefor  as  upon  a  judgment." 


§19  ISSUING  THE  ORIGINAL  EXECUIION.  32 

by  the  court.  The  judgment  necessarily  precedes  its 
entry.  The  entry  or  record  is  not  the  judgment,  but 
merely  the  best  evidence  of  the  fact  that  the  judgment 
exists.  As  a  judgment  may  exist  preceding  the  record 
evidence  of  its  existence,  so  it  may  continue  in  full  force 
after  this  evidence  has  been  lost  or  destroyed.  Hence 
the  destruction  or  mutilation  of  the  record  by  no  means 
divests  the  court  nor  the  proper  officers  thereof  of 
authority  to  issue  execution.'^ 

§  19.  Execution  on  a  Merged  or  Satisfied  Judg- 
ment.— AYhen  a  judgment  or  decree  has,  by  payment 
or  otherwise,  lost  its  original  force,  the  case  presented 
is  very  different  from  that  where  the  mere  evidence  has 
been  lost.  When  satisfied,  the  judgment  has  fully  ac- 
complished its  mission,  and  the  preponderance  of  author- 
ity is  in  favor  of  disregarding  as  absolutely  void  all 
proceedings  taken  subsequentl}^  to  the  satisfaction. 
The  satisfaction  of  a  judgment,  as  a  matter  of  course, 
must  terminate  the  period  when  execution  can  prop- 
erly issue;  it  must  equally  follow,  as  a  matter  of 
course,  that  the  subsequent  issue  of  execution  can,  as 
to  the  plaintiff  and  all  persons  acting  in  concert  with 
him  and  having  notice  of  the  satisfaction,  afford  no  jus- 
tification for  issuing  the  writ,  nor  for  any  act  done  under 
its  authority.^  Whoever  sues  out  an  execution  on  a 
judgment  which  he  knows  to  be  paid  is  liable  for  all 
damages  which  he  may  occasion  the  defendant  thereby; 
nor  is  it  essential  to  the  maintenance  of  the  action  that 
the  wrongful  issue  of  the  execution  be  shown  to  have 

1  Strain  v.  Murphy,  49  Mo.  340;  Faust  v.  Echols,  4  Cohl.  400;  Fleece  v. 
Goodrum,  1  Duvall,  306;  Cheesewright  v.  Franks,  7  Dowl.  471;  Fischer  v.  Sie- 
vers,  6  Chic.  L.  N.  11. 

2  McGuinty  v.  Herrick,  5  Wend.  240;  Weston  v.  Clark,  37  Mo.  573;  Myers 
V.  Cochran,  29  Ind.  256;  Paickman  v.  Cowell,  I  N.  Y.  505;  Keeling  v.  Heard, 
3  Head,  592;  Hofifman  v.  Stroheckcr,  7  Watts,  86;  32  Am.  Dec.  740. 


33  ISSUING  THE  ORIGINAL  EXECUTION.  §19 

been  the  result  of  actual  malice.^  Id  England  it  must 
be  shown  that  the  writ  issued  without  probable  cause. ^ 
A  plaintiff  is  also  liable  to  defendant  if  he  persist  in 
acting  under  an  execution  after  tender  of  satisfaction 
has  been  made  to  and  refused  by  the  sheriff.^  As  the 
statutes  of  the  several  states  generally,  and  we  believe 
universally,  provide  for  the  entry  of  satisfaction  on  the 
record  or  upon  the  judgment  docket,  and  thus  afford 
defendants  ample  means  of  giving  public  notice  that  an 
apparent  obligation,  evidenced  by  the  public  records, 
has  been  canceled,  we  have  before  expressed,*  and  must 
still  express,  our  dissatisfaction  w^ith  the  rule  of  law 
which  permits  an  execution  issued  upon  a  judgment 
apparently  in  force  to  be  treated  as  void.  Neverthe- 
less, so  large  a  number  of  cases  may  be  cited  to  show 
that  even  an  innocent  purchaser  at  an  execution  sale 
must  lose  his  title  by  parol  proof  of  the  prior  satisfac- 
tion of  the  judgment,  that  we  must  look  to  the  legisla- 
ture rather  than  to  the  judiciary  for  means  of  escape 
from  the  hardship  of  this  rule.^     The  reasoning  by 

1  Brown  V.  Feeter,  7  Wend.  301 ;  Glover  v.  Hortoii,  7  Blackf .  295. 

''■  Roret  V.  Lewis,  5  Dowl.  &  L.  371. 

'  Tiffany  v.  St.  John,  5  Lans.  153;  INIasson  v.  Smlan,  2  Johns.  Ch.  172. 

*  Freeman  on  Judgments,  §  4S0. 

*  Durettc  v.  Briggs,  47  Mo.  3GI;  Wood  v.  Colvin,  2  Hill,  5G7;  38  Am.  Dec. 
598;  King  v.  Goodwin,  IG  Mass.  63;  Shelly  v.  Lash,  IG  Minn.  498;  Swan  v. 
Saddlemire,  8  Wend.  G7G;  Lewis  v.  Palmer,  8  Wend.  3GS;  State  v.  Salyers,  19 
Ind.  43G;  Neilson  r.  Neilion,  5  Barb.  5G9;  Carpenter  r.  StillwcU,  UN.  Y.  Gl; 
Laval  V.  Rowley,  17  Ind.  3G;  Hunter  v.  Stevenson,  1  Hill  (S.  C),  415;  Knight 
V.  Applegate,  3  T.  B.  Mon.  335;  MurrcU  v.  Roberts,  11  Ired.  424;  53  Am.  Dec. 
419;  McClure  v.  Logan,  59  Mo.  2.34;  Carnes  v.  Flatt,  59  N.  Y.  411;  Frost  v. 
Yonkers  Savings  Bank,  70  N.  Y.  5G0;  2G  Am.  Rep.  027;  Wells  v.  Chandler,  2 
Fed.  Rep.  273;  Drefahl  v.  Tuttle,  42  Iowa,  177.  This  last  case  shows  that  at 
least  between  the  parties  to  the  writ  no  estoppel  can  arise  to  preclude  the  de- 
fendant from  successfully  resisting  an  action  to  recover  the  pro))i'rty  sold  uinler 
the  writ,  from  the  fact  that  ho  was  aware  of  its  issuance,  made  no  effort  to 
have  it  vacateil,  and  even  procured  one  po.stponement  of  the  .sale  with  the  in- 
tent of  fibtainiug  funds  witli  which  to  satisfy  the  writ.  In  this  case  both  par- 
ties were  fully  cognizant  of  the  facts,  though  each  was  probably  mistaken  with 

Vol.  I. -3 


§  19  ISSUING  THE  ORIGINAL  EXECUTION.  34 

which  tills  rule  of  law  has  been  best  defended  was  thus 
stated  in  the  New  York  court  of  appeals:  ''The  judg- 
ment was  the  sole  foundation  of  the  sheriff's  power  to 
sell  and  convey  the  premises;  and  if  the  judgment  was 
paid  when  he  undertook  to  sell  and  convey,  his  power 
w'as  at  an  end,  and  all  his  acts  were  without  authority 
and  void.  The  purchaser  under  a  power  is  chargeable 
with  notice,  if  the  power  does  not  exist,  and  purchases 
at  his  peril."  ^  The  supreme  court  of  Missouri  quite 
recently,  with  less  logic  but  equal  emphasis,  announced 
as  its  conclusion  on  this  subject  that  "when  an  execu- 
tion has  performed  its  office  by  extracting  full  satisfac- 
tion from  a  portion  of  the  debtor's  property,  it  cannot 
have  sufficient  life  and  vigor  to  deprive  him  of  the 
residue,  and  transfer  the  title  from  him  to  another."'^ 
On  the  other  hand,  it  is  insisted  that  an  execution 
regular  on  its  face,  based  upon  a  judgment  equally 
regular  and  apparently  in  full  force,  must  be  regarded 
as  a  regular  execution;  that  while  a  regular  execution 
may  be  voidable,  it  cannot  be  void;  that  it  must  oper- 
ate as  a  sufficient  justification  to  officers  intrusted  with 
its  execution;^  and  finally,  that  it  cannot  be  the  means 
of  ensnaring  innocent  purchasers  when  nothing  exists 
to  warn  them  that  the  foundation  on  which  it  appar- 
ently rests  has   in   fact  been   swept  away.*     But  the 

respect  to  the  law.  The  judgment  had  been  paid  by  one  of  several  defendants 
who  was  a  surety  of  the  others;  and  they  all  believed  that  the  judgment  might 
be  kept  in  force  for  the  purpose  of  enabling  him  to  compel  repayment  from  his 
co-deiendants. 

1  Craft  V.  Merrill,  14  N.  Y.  456. 

*  Durette  v.  Btiggs,  47  Mo.  361. 

^  Mason  v.  Vance,  1  Sueed,  178;  60  Am.  Dec.  144;  Lewis  v.  Palmer,  6 
Wend.  367. 

*  Lnddington  v.  Peck,  2  Conn.  700;  Boren  v.  McG^hee,  6  Port.  432;  31  Am. 
Dec.  695;  Jackson  v.  Caldwell,  1  Cow.  622;  Van  Campeu  v.  Snyder,  3  How. 
(Miss.)  66;  32  Am.  Dec.  311;  Hoffman  v.  Strohecker,  7  Watts,  86;  32  Am. 
Dec.  740;  Doe  v.  IngersoU,  11  Smedes  &  M.  249;  49  Am.  Dec.  57;  Morton  v. 


35  ISSUING  THE  ORIGINAL  EXECUTION.  §19 

authorities  sustaining  this  view  concede  that  when  the 
purchaser  has  notice,  the  execution  and  sale  are  void. 
When  a  judgment  has  been  sued  upon,  and  the  suit 
has  resulted  in  a  second  judgment  against  the  defend- 
ant based  upon  the  first,  it  is  impossible  to  state,  under 
the  present  condition  of  the  authorities,  whether  the 
first  is  merged  into  and  extinguished  by  the  second,  or 
whether  both  must  be  res^arded  as  in  force  until  one  is 
satisfied  by  payment.  We  see  no  reason  why  the  sec- 
ond judgment  should  not  be  regarded  as  a  full  merger 
and  satisfaction  of  the  first,  and  to  this  view  we  think 
the  authorities  slightly  preponderate,^  But  upon  the 
common-law  theory  that  no  merger  can  take  place  ex- 
cept where  the  original  debt  is  replaced  by  a  debt  of  a 
higher  nature,  it  has  frequently  been  denied  that  one 
judgment  can  merge  into  another."  This  last  view  has 
for  a  long  period  and  on  many  occasions  received  the 
approval  of  the  courts  of  the  state  of  New  York.  In 
that  state  it  is  certain  that  the  first  judgment  may, 
notwithstanding  the  second,  be  enforced  b}^  execution;^ 
and  this  is  also  the  rule  in  Alabama  and  Texas,  at  least 

Academies,  8  Smedes  &  M.  773;  Banks  v.  Evans,  10  Smedes  &  M.  35;  48  Am. 
Dec.  734. 

1  Chitty  V.  Glenn,  3  T.  B.  Mon.  425;  Whiting  v.  Beebee,  7  Eng.  540;  Free- 
man on  Judgments,  sees.  215,  21G.  In  several  caaes  a  statutory  judgment  aris- 
ing by  force  of  the  law  on  tJie  forfeiture  of  bonds  has  been  held  to  be  a  full 
discharge  of  the  original  judgment.  Witherspoon  v.  Spring,  3  How.  (Miss.) 
60;  32  Aui.  Dec.  310;  King  v.  Terry,  6  How.  (Miss.)  5b3;  Brown  v.  Clark,  4 
How.  (Miss.)  4;  Bank  of  U.  S.  v.  Patton,  5  How.  (Miss.)  200;  35  Am.  Dec. 
428;  Wright  v.  Yell,  13  Ark.  503;  58  Am.  Dec.  3.36;  Hauna  v.  Guy,  3  Bush, 
91;  Cook  V.  Armstrong,  25  ^lisa.  63;  Ncale  v.  Jeter,  25  Ark.  98;  Black  v. 
Nettle,  25  Ark.  606;  Lipscomb  v.  Grace,  26  Ark.  234-;  Commonwealth  v.  Mer- 
rigan,  8  Bush,  132;  Joyce  v.  Farquhar,  1  A.  K.  Marsh.  20. 

»  Weeks  v.  Pearson,  5  N.  H.  324;  Griswold  v.  Hill,  2  Paine,  492. 

'Jackson  v.  ShafTcr,  11  Johns.  513;  Mumford  v.  Stocker,  1  Cow.  178;  Doty 
V.  Russell,  5  Weml.  120;  Andniw.s  v.  Smith,  0  Wend.  53;  Iktcs  v.  Lyon«,  7 
Paige,  80;  Howard  v.  Sheldon,  1 1  Paige,  55S;  Millard  v.  Whitaker,  5  Hill,  408; 
Small  V.  Wheatou,  2  Abb.  Pr.  316;  4  E.  D.  Smith,  427;  Smith  v.  Audcraou,  18 
Md.  520. 


§20  ISSUING  THE  ORIGINAL  EXECUTION.  36 

in  regard  to  statutory  judgments  on  fortlicoimng  and 
delivery  bonds/ 

Where  from  any  cause  a  judgment  is  by  the  record, 
or  by  the  return  of  execution  shown  to  be  satisfied,  it 
would  certainly  be  very  irregular  to  issue  execution, 
although  the  entry  of  satisfaction  was  made  through 
mistake.  In  such  cases,  if  sufficient  cause  exists  for 
vacating  the  apparent  satisfaction,  application  should 
first  be  made  to  the  court  for  such  vacation,  and  for 
leave  to  issue  execution  before  any  further  steps  are 
taken  toward  the  enforcement  of  the  judgment.^  But 
it  must  be  admitted  that  due  respect  for  this  rule  has 
not  been  uniformly  enforced.  Thus  where  plaintiff 
executed  a  catisfaetion  piece,  and  delivered  it  to  a  third 
person  with  authority  to  file  it  on  compliance  with  cer- 
tain conditions,  and  it  was  filed  without  such  compli- 
ance, the  court  held  that  the  plaintiff  was  entitled  to 
issue  execution  without  asking  for  leave  of  the  court, 
and  while  the  satisfaction  remained  in  apparent  force. ^ 
The  pendency  of  an  action  upon  a  judgment  has  no 
effect  upon  the  right  to  issue  execution  thereon.* 

§  20.    Executions  on  Void  Judgments  or  Orders. 

—  It  is  not  sufficient  that  the  judgment  on  which  exe- 
cution issues  appears  to  be  final,  and  is  perfect  in  form. 
It  must  at  least  be  so  far  valid  as  to  be  impregnable 
to  collateral  assault.  "A  void  judgment  is  in  legal 
effect  no  judgment.     By  it   no  rights   are   divested. 

1  Patton  V.  Hanuier,  33  Ala.  307;  Cole  v.  Robertson,  6  Tex.  S56;  55  Am. 
Dec.  784. 

2  Foot  V.  Dillaye,  C5  Barb.  521;  Ackerman  v.  Ackerman,  14  Abb.  Pr.  229; 
Snipes  v.  Beezley,  5  Or.  420. 

^  Audersou  v.  Nicholas,  5  Robt.  634. 

*  Cushing  V.  Arnold,  9  Met.  23;  Moor  v.  Towle,  38  Me.  13.3;  Freeman  on 
Judgments,  sec.  440. 


37  ISSUING  THE  ORIGINAL  EXECUTION,  §21 

From  it  no  rights  can  be  obtained.  Being  worthless 
in  itself,  all  proceedings  founded  upon  it  are  equally 
worthless.  It  neither  binds  nor  bars  any  one.  All 
acts  performed  under  it  and  all  claims  flowing  out  of  it 
are  void.  The  parties  attempting  to  enforce  it  may  be 
responsible  as  trespassers.  The  purchaser  at  a  sale  by 
virtue  of  its  authority  finds  himself  without  title  and 
without  redress."  ^  An  execution  issued  by  a  clerk 
without  the  authority  of  any  judgment  whatever,  like 
that  issued  on  a  void  judgment,  has  no  validity.'^ 

§  21.  Wlio  may  Sue  out,  and  how  He  may  Compel 
its  Issuance.  —  As  the  judgment  is  the  property  of  the 
plaintilf,  he  alone,  while  the  property  remains  his,  is 
entitled  to  exercise  dominion  over  it.  As  a  writ  of 
execution  is  the  only  means  by  which  the  property  can 
be  made  productive,  the  owner  of  the  property  is  neces- 
sarily the  person  entitled  to  call  for  the  writ;  to  with- 
hold the  writ  from  him  is  in  eftect  to  withhold  from  him 
the  beneficial  enjoyment  of  his  propert}^;  and  to  allow 
another  to  call  for  or  to  control  the  writ  is  to  turn  the 
dominion  of  property  over  to  one  who  has  no  right 
thereto.  Of  course,  ownership  over  judgments,  like 
ownership  over  all  other  kinds  of  property,  may  be 
exercised  in  person  or  by  duly  constituted  agents. 
But  as  the  plaintiff  is  the  only  person  entitled  to  the 
fruits  of  the  judgment,  no  execution  can  properly  issue 

'  Freeman  on  Judgments,  sec.  117,  citing  Campbell  v.  McCahan,  41  111.  45; 
Roberts  v.  Stowers,  7  Bu.sh,  295;  Huls  v.  Buntim,  47  111.  397;  Shcrrill  v.  Good- 
mm,  3  Humph.  4.30;  Andrews  v.  State,  2  Snecd,  550;  HoUingsworth  v.  Bagley, 
35  Tex.  'M'r,  Morton  r.  Root,  2  Dill.  312;  Com.  Bank  v.  Martin,  9  Smcdes  & 
M.  G13;  Hargis  v.  Morse,  7  Kan.  417.  Sec  also  Cornell  v.  Barnes,  7  Hill,  35; 
Dawsoa  r.  Wells,  3  Ind.  398;  Meyer  (.'.  Miutonye,  lOG  111.  414. 

»  CriswcU  V.  Ragsdalc,  18  Tex.  443. 


§21  ISSUING  THE  ORIGINAL  EXECUTION.  38 

except  at  his  instance  or  that  of  his  attorney  or  agent/ 
Where  a  deputy  clerk  issued  execution  without  author- 
ity from  the  plaintiff,  and  afterwards  became  the  pur- 
chaser at  a  sale  thereunder,  it  was  held  that  he  could 
take  no  benefit  from  his  purchase,  although  no  actual 
fraud  entered  into  the  transaction ;  but  that  a  grantee 
from  such  clerk  for  value  and  without  notice  of  the 
irregularity  could  not  be  disturbed  in  his  title.^ 

An  execution  may  be  issued  by  tlie  clerk  of  the  court 
without  the  authority  or  knowledge  of  the  plaintiff.  In 
that  event  the  plaintiff,  on  becoming  aware  of  such  is- 
suance, may  ratify  it,  and  upon  such  ratification  the 
writ  seems  to  become  and  remain  as  efficient  and  unob- 
jectionable as  though  originally  issued  by  authority.^ 
Doubtless  the  ratification  may  be  inferred  from  very 
slio-ht  circumstances,  when  the  knowledge  of  the  exist- 
ence  of  the  writ  is  brought  home  to  plaintiff.  Never- 
theless, it  may  happen  without  any  fault  or  neglect  on 
the  part  of  the  plaintiff,  that  the  writ  is  issued  and 
executed  without  his  knowledge  and  to  his  prejudice. 
In  such  case,  either  he  or  the  purchaser  at  the  execu- 
tion sale  must  suffer  a  loss ;  and  so  far  as  the  question 
has  been  considered,  it  has  been  held,  and  perhaps 
wisely,  that  the  loss,  if  any,  falls  on  him,  and  that  the 

^  State  V.  Wilkins,  21  Ind.  217;  Watt  v.  Alvord,  25  Ind.  535;  Wills  v. 
Chandler,  2  Fed.  Rep.  273;  Newkirk  v.  Chapron.  17  111.  345;  Osgood  v.  Brown, 
Freem.  Cli.  292;  Wickliff  v.  Robinson,  18  111.  145;  Ex  parte  Hampton,  2  G. 
Greene,  137;  Nunemacher  v.  Ingle,  20  Ind.  135;  Brush  v.  Lee,  36  N.  Y.  49; 
McDonald  v.  O'Flynn,  2  Daly,  42. 

»  Lewis  V.  Phillips,  17  Ind.  108;  79  Am.  Dec.  467.  Where  after  death  of 
plaintiff  execution  was  taken  out  in  his  name  by  persons  not  appearing  to  have 
any  authority  to  do  so,  the  court  seemed  inclined  to  the  opinion  that  it  was 
void.  Bellinger  v.  Ford,  14  Barb.  251.  Aa  aiecution  issued  by  a  clerk, 
without  authority,  may  be  quashed  or  enjoined.  Shakleford  v.  Apperson,  6 
Gratt.  451. 

5  Clarkson  v.  White,  4  J.  J.  Marsh.  529;  20  Am.  Dec.  229;  Lerch  v.  Gallup, 
67  Cal.  595. 


39  ISSUING  THE  ORIGINAL  EXECUTION.  §21 

purchaser,  if  he  acted  in  good  faith,  takes  title  although 
the  sale  was  \Yithout  plaintiff's  knowledge,  and  realized 
a  sum  less  than  the  value  of  the  property,  and  insuffi- 
cient to  satisfy  the  writ/  This  is  upon  the  ground 
that  the  purchaser  is  not  bound  to  look  behind  the 
judgment  and  writ,  and  may  safely  presume  that  the 
acts  of  the  officers,  apparently  within  the  scope  of  their 
powers  and  duties,  were  not  unauthorized.  Until  the 
contrary  is  sliown,  an  execution  will  be  presumed  to 
have  issued  at  the  instance  of  the  plaintiff.^  An  exe- 
cution may  be  issued  by  a  different  attorney  from  the 
one  employed  when  judgment  was  entered,^  though  no 
formal  substitution  be  made.  The  plaintiff  may  con- 
trol his  own  execution  free  from  the  interference  of  his 
attorney  and  of  the  officers  of  the  court.*  When  the 
plaintiff  has  ceased  to  have  any  interest  in  the  jnd<y- 
ment,  by  reason  of  his  having  it  assigned  to  another, 
his  right  to  control  process  also  ceases.  Whether  the 
law  recognizes  the  assignment  as  a  legal  or  only  as  an 
equitable  transfer,  it  nevertheless  allows  the  assignee 
to  control  the  execution.^  A  stranger  may  acquire  an 
equitable  right  to  the  benefit  of  the  execution,  or  to  the 
property  upon  which  it  is  levied,  and  such  equitable 
right  may,  in  most  cases,  give  him  authority  to  sue  out 
and  conduct  the  process,  or  to  object  to  its  regularity 
or  validity ;  but  he  cannot  do  so  by  proceedings  in  the 
case  in  his  own  name,  upon  or  against  the  process,  for 
the  purpose  of  enforcing  or  abrogating  the  same:  he 

1  Sowles  V.  Harvey,  20  Incl.  217;  83  Am.  Dec.  315;  Splahn  v.  Gillespie,  48 
InJ.  410;  Johnstons.  Murray,  112  Ind.  154. 

2  Niantic  Bank  v.  Dennis,  37  111.  381. 

»  Cook  i\  Dickerson,  1  Duer,  G79;  Thorp  v.  Fowler,  5  Cow.  446;  Tipping  v. 
Johnson,  2  Bos.  &  P.  357. 

♦  Roddick  V.  Cloud,  2  (Jilm.  G70;  Morgan  v.  People,  59  111.  58. 

*  CorricU  v.  Doolittle,  2  G.  Greene,  385. 


§2?  ISSUING  THE  ORIGINAL  EXECUTION.  40 

must  do  it  in  the  name  of  a  leoral  party  to  the  process, 
or  one  who  can  be  made  so.  And  this  authority,  so 
derived,  to  use  the  name  of  a  party  to  the  process  of  a 
court  of  law,  will  be  so  far  recognized  by  such  court  as 
to  preclude  the  intervention  of  such  party  for  the  pur- 
pose of  defeating  it.  But  a  court  of  law  cannot  tol- 
erate the  intromission  of  equitable  claimants  into  or 
against  its  process  as  if  they  were  legal  parties  thereto; 
which  would  break  in  upon  its  forms  and  mode^  of  ad- 
ministering justice,  and  present  for  its  adjudication  col- 
lateral, and  indeed  irrelevant,  questions  arising  out  of 
the  derivation  of  their  interests ;  for  equitable  claimants 
can  acquire  no  better  or  other  right  to  prosecute  or 
defend  the  process  under  or  against  which  they  claim 
than  that  of  the  parties  from  whom  they  derive  their 
interest."^  The  right  to  have  an  execution  may  be 
denied  to  the  plaintiff  by  the  officer  whose  duty  it  is  to 
issue  it.  In  such  case,  the  plaintiff  seems  to  have  his 
choice  between  these  remedies:  he  may  sue  for  the 
damages  occasioned  by  the  denial  of  his  right ;  ^  or  he 
may,  by  motion  or  by  mandamus,  compel  the  issuing  of 
the  writ.^  In  California,  however,  when  the  judgment 
is  for  money  only,  the  plaintiff  cannot  proceed  by  man- 
damus, because  the  remedies  by  motion  and  by  action 
against  the  clerk  are  both  adequate.* 

§  22.  Persons  against  Whom  Execution  may  Is- 
sue.—  "The  power  and  authority  of  our  courts  extend 
over  every  class  of  persons  and  every  species  of  prop- 

^  Wallop's  Adm'r  v.  Scarburgh,  5  Gratt.  4;  Haden  v.  Walker,  5  Ala.  88- 
risk  V.  Lamoreaux,  48  Mo.  523;  Weir  v.  Pennington,  6  Eng.  745. 

2  Gaylor  v.  Hunt,  23  Ohio  St.  255. 

5  Terhume  v.  Barcalow,  6  Halst.  38;  Laird  v.  Abrahams,  3  Green  ( N.  J.),  22; 
People  V.  Yale,  22  Barlj.  502;  Stafford  i;.  Union  Bank,  17  How.  275.  See  Jones 
V.  McMahan,  30  Tex.  726. 

*  Goodwin  v.  Glazer,  10  Cal.  333;  Fulton  v.  Hanna,  40  CaL  278. 


41  ISSUING  THE  ORIGINAL  EXECUTION.  §2? 

ertj  situate  with  in  the  territorial  limits  in  which  those 
courts  are  authorized  to  act,  and  subject  to  the  same 
sovereignt}'"  which  oro-anized  the  courts,  and  invested 
them  with  judicial  functions.  Every  subject  is,  there- 
fore, liable  to  be  made  a  party  litigant,  and  to  be  bound 
by  the  result  of  the  litigation.  Those  disabilities  aris- 
ing from  infancy,  from  coverture,  or  from  mental 
infirmities,  which  render  parties  incapable  of  being 
bound  by  their  contracts,  do  not  have  the  effect  of 
exempting  any  person  from  the  control  of  the  courts."  ^ 
It  would  be  a  contradiction  of  terms  to  say  that  all 
persons  may  be  bound  b}^  judgments,  and  then  to 
declare  that  some  persons  are  exempt  from  having 
executions  issued  against  them.  The  decisions  in  re- 
gard to  the  persons  who  may  be  parties  to  judgments 
are  not  perfectly  liarmonious;  but  wherever,  under  the 
law  as  understood  in  any  particular  state,  a  person,  or 
class  of  persons,  may  be  made  parties  litigant,  and 
bound  l^y  judgments  against  them,  it  must  follow,  in 
the  absence  of  statutes  to  the  contrary,  that  the  same 
persons  may,  by  writs  of  execution,  be  made  to  satisfy 
such  judgments.  In  other  words,  when  a  judgment  is 
valid  against  the  defendant,  an  execution  based  upon 
it  must,  unless  expressly  forbidden  by  statute,  be 
equally  valid.  Execution  may  therefore  issue  against 
a  lunatic,^  and  also  acjrainst  a  married  woman. ^  There 
are,  however,  some  familiar  instances  in  which  the  only 
effect  of  a  judgment  is  to  establish  the  existence  of  a 

*  Freeman  on  Judgments,  sec.  142.  As  to  judgments  against  married 
women,  lunatics,  infants,  and  deceased  persons,  see  Freeman  on  Judgments, 
sees.  142-153. 

*  Ex  parte  Leigh  ton,  14  Mass.  207;  Thatcher  v.  Dinsmore,  5  Mass.  299. 

'  Moncrief  v.  Ward,  IG  Abh.  Tr.  3')4,  note;  Baldwin?'.  Kiinmel,  IG  Abb. 
Pr.  35.3;  1  Roljt.  10[);  Charles  v.  Lowenstein,  26  How.  Pr.  29;  Fox  v.  Hatch, 
14  Vt.  340;  39  Am.  Dec.  22G. 


§22  ISSUING  THE  ORIGINAL  EXECUTION.  42 

liability  against  the  defendant;  and  in  which  the  plain- 
tift'  cannot  issue  execution,  but  must  obtain  satisfaction 
in  some  other  manner  provided  by  law.  Thus,  a  judg- 
ment against  a  count}^  or  a  municipal  corporation,  is 
ordinarily  no  more  than  the  mere  establishment  of  a 
valid  claim,  which  it  is  the  duty  of  tlie  proper  officers 
to  provide  means  of  payment,  out  of  the  revenues  of 
the  defendant.  It  is  error  to  award  or  issue  (execution 
on  such  a  judgment.^     This  rule  is  not  of  universal 

1  Emeric  v.  Gilmau,  iO  Cal.  404;  70  Am.  Dec.  742;  Kimmundy  v.  Malian, 
72  111.  402;  Wilson  v.  Commissioners,  7  Watts  &  S.  197;  Board  of  Supervisors 
V.  Edmonds,  70  111.  544;  Knox  County  v.  Arms,  22  111.  175;  King  v.  McDrew, 
31  111.  418;  Gilmanv.  Contra  Costa  County,  S  Cal.  52;  68  Am.  Dec.  290;  Sharp 
V.  Contra  Costa  County,  34  Cal.  290;  City  of  Chicago  v.  Hasley,  25  111.  595. 
In  this  last  case  a  judgment  for  damages  had  been  recovered  against  the  city 
of  Chicago,  and  execution  issued  thereon.  A  motion  to  quash  the  writ  having 
been  made  and  refused,  an  appeal  was  taken  to  the  supreme  court,  where  the 
action  of  the  subordinate  court  was  reversed.  Breese,  J.,  in  pronouncing  the 
opinion  of  the  coiirt,  said:  "There  can  be  no  doubt  that  the  property  of  a  pri- 
vate corporation  may  be  seized  and  sold  under  a  /.  fa.  for  the  payment  of  its 
debts,  as  in  the  case  of  an  individual,  such  corporation  being  bound  to  provide 
for  its  just  debts,  whether  payment  is  made  by  a  forced  sale  of  its  property 
for  that  purpose,  or  with  money  from  its  safe. 

"The  nature,  objects,  and  liabilities  of  political,  municipal,  or  public  cor- 
porations, we  think,  stand  on  different  grounds.  These  corporations  signify  a 
community,  and  are  clothed  with  very  extensive  civil  authority  and  political 
power.  All  municipal  corporations  are  both  public  and  political  bo.dies.  They 
are  the  embodiment  of  so  much  political  power  as  may  be  adjudged  necessary, 
by  the  legislature  granting  the  charter,  for  the  proper  government  of  the 
people  within  the  limits  of  the  city  or  town  incorporated,  and  for  the  due  and 
efScient  administration  of  their  local  affairs.  For  these  purposes,  the  author- 
ities can  raise  revenue  by  taxation,  make  public  improvements,  and  defray 
the  expenses  thereof  by  taxation,  exercise  certain  judicial  powers,  and  gener- 
ally act  within  their  limited  spheres,  as  any  other  political  body,  restrained 
only  by  the  charters  creating  them,  —  beyond  them,  they  cannot  go.  This 
power  of  taxation  is  i^lenary,  and  furnishes  ordinarily  the  only  means  such 
•arporations  possess  by  which  to  pay  their  debts.  They  cannot  be  said  to 
possess  property  liable  to  execution,  in  the  sense  an  individual  owns  property 
so  subject,  for  they  have  the  control  of  the  corporate  property  only  for  cor- 
porate purposes,  and  to  be  used  and  disposed  of  to  promote  such  purposes,  and 
such  only.  Levying  on  and  selling  such  property,  and  removing  it,  would 
work  the  most  serious  injury  in  any  city.  Many  of  our  cities,  Chicago  espe- 
cially, have  costly  water-works,  indispensable  to  the  lives  and  health  of  the 
citizens.     These  works  are  as  much  the  property  of  the  city  as  any  other  it 


43  ISSUING  THE  ORIGIX-LL  EXECUTION.  §22 

application.  In  Wisconsin,  an  execution  may,  in  cer- 
tain contingencies,  issue  against  a  county.^  Judgments 
aoainst  an  executor  or  administrator,  on  a  cause  of 
action  accrued  against  the  deceased,  are  often  vcr}?" 
similar  in  their  legal  effect  to  a  judgment  against  a 
county.  This  is  so  when  they  merely  establish  the 
existence  of  a  valid  claim  ao'ainst  the  estate,  which 
must  ba  paid  in  the  course  of  administration.  Such  a 
judgment  cannot  ordinarily  be  enforced  by  execution.^ 
On  the  other  hand,  there  are  judgments  making  ad- 
ministrators or  executors  personally  responsible;  and 
also  judgments  which,  under  the  law  of  the  state,  or 
by  leave  of  the  surrogate,  are  to  be  enforced  at  once, 
without  waitinof  for  due  course  of  administration.  On 
such  judgments  a  writ  of  execution  ma}''  issue.  But 
no  execution  can  be  properly  issued  against  any  person 
unless  a  judgment  has  been  pronounced  against  him. 
Where  the  writ  is  against  one  defendant  only,  and  is 
not"  supported   by  a  judgment  against  liim,  it  is  un- 

may  control,  and  in  appellee's  view,  liable  to  be  seized  and  sold  on  execution, 
to  the  great  discomfort  and  probable  ruin  of  the  inhabitants.  Fire-engines  are 
also  indispensable;  they,  too,  can  be  seized  and  sold,  and  a  great  city  exposed 
to  the  ravages  of  fire,  and  all  this  to  enable  one  or  more  creditors  of  the  city 
to  obtain  the  fruits  of  judgments  against  the  citj',  which,  by  another  process, 
not  producing  any  of  these  destructive  inconveniences,  they  could  fully  obtain. 
The  money  raised  by  taxation  couM  also  lie  levied  upon,  and  the  whole  business 
of  the  city  be  broken  up  and  deranged,  — its  offices  and  office  furniture,  its  jails, 
hospitals,  and  other  puldic  buildings,  taken  from  the  corporate  authorities  and 
sold  to  strangers,  who  woul.l  liave  a  right  to  the  exclusive  possession  of  them 
if  not  redeemed.  In  the  absence  of  an  express  statute  authorizing  a  proceed- 
ing fraught  with  such  consequences,  we  must  hold  that  a  fi.  fa.  cannot  issue 
against  the  city  of  Chicago." 

'  Savage  v.  Supervisors  of  Crawford  County,  10  Wis.  49. 

2  Bull  V.  Harris,  31  111.  487;  Home  v.  Spivey,  44  Ga.  GIG.  But  an  execu- 
tion in  whicli  the  word  "  executor  "  or  "  administrator  "  is  added  to  the  defend- 
ant's name,  witliout  anything  further  to  indicate  that  it  is  against  the  defendant 
in  his  representatWe  capacity,  may  be  treated  as  against  hiui  personally,  and 
levied  upon  his  property.     Tinsley  v.  Lee,  51  Ga.  482. 


§23  ISSUING  THE  ORIGINAL  EXECUTION.  44 

cloubtcclly  Toid.^  So  where  a  wTit  issues  against  sev- 
eral, some  one  of  whom  is  not  embraced  in  the  judg- 
ment, it  has  been  held  to  be  void  in  toto}  We  are 
inclined  to  doubt  the  correctness  of  these  decisions,  and 
to  believe  that  the  addition  of  unauthorized  names  is  a 
variance  for  which  the  writ  ought  to  be  quashed;  but 
that,  if  permitted  to  stand,  it  must  be  treated  as  bind- 
ing on  the  persons  properly  named  therein.  By  virtue 
of  statutes,  writs  of  execution  may  be  authorized  against 
persons  not  nominally  parties  to  the  original  judgment. 
A  familiar  instance  of  this  is  the  statute  which,  on 
return  of  nulla  bona,  to  an  execution  against  a  corpora- 
tion, authorizes  its  stockholders  to  be  brought  before 
the  court  on  motion,  and  an  order  to  be  thereupon 
made  for  the  issuing  of  execution  against  them  for 
their  proportion  of  the  debt.^ 

§  23.  By  Whom  Issued.  —  The  a^v^arding  of  an  exe- 
cution is  a  judicial  act.  "To  award  is  to  adjudge,  to 
give  anything  by  judicial  sentence."^  "To  award  an 
execution  is  a  judicial  act,  and  not  a  ministerial  one;  no 
such  power  is  given  the  clerk  by  law.  In  England,  when 
he  issues  the  execution  it  is  by  order  of  the  court;  here 
it  is  by  virtue  of  the  judgment,  which,  it  is  determined, 
awards  the  execution."^  The  award  of  execution  need 
not  be  mentioned  in  the  judgment;  for  it  is  by  law  the 
necessary  consequence  of  the  judgment.  The  award  of 
execution,  or  in  other  words,  the  granting  of  judg- 
ment, being  a  judicial  act,  the  judge  is  not  personally 

1  Terrail  v.  Tinney,  20  La.  Ann.  444. 

2  Fleming  v.  Dayton,  8  Ired.  453;  Blanchard  v.  Blanchard,  3  Ired.  105;  38 
Am.  Dec.  710;  Pennoyer  t).  Brace,  I  Ld.  Raym.  244. 

3  Marks  v.  Hardy,  86  Mo.  232;  Paxon  v.  Talmage,  87  Mo.  13. 

*  Jolinson  V.  Ball,  1  Yerg.  292;  24  Am,  Dec.  751. 

*  Daley  v.  Perry,  9  Yerg.  444. 


45  ISSUING  THE  ORIGINAL  EXECUTION.  §  23 

liable  for  errors  committed  by  him  in  its  performance. 
But  as  the  issuing  of  execution  is  a  mere  ministerial 
act,  the  officer  is  liable  for  unlawfully  performing  it. 
Hence  in  Massachusetts,  a  justice  of  the  peaie,  who, 
in  defiance  of  the  statute,  issued  execution  within 
twenty-four  hours  after  entering  judgment,  was  held 
responsible  in  an  action  of  trespass.^  Another  result, 
followinof  from  the  rule  that  the  issue  of  execution  is  to 
be  regarded  as  a  ministerial  act,  is  that  the  officer  hav- 
ing authority  to  issue  the  writ  need  not  do  it  in  person, 
but  may  delegate  his  authority  to  another.  It  is  not 
indispensable  to  the  regularity  of  an  execution  that  it 
should  be  issued  by  the  clerk  or  a  duly  qualified  deputy. 
If  the  clerk  thinks  proper,  he  can  engage  the  services 
of  an  assistant  to  write  for  him ;  and  if  the  execution 
is  made  out  and  subscribed  with  his  name,  by  his  direc- 
tion, and  under  his  supervision,  or  if  made  and  sub- 
scribed with  his  name,  and  afterwards  adopted  by  him, 
it  would,  in  point  of  law,  be  as  much  his  act  as  if  the 
labor  had  been  performed  with  his  own  hand."^  The 
same  rulini;  has  been  made  in  the  case  of  an  execution 
issued  out  of  a  justice's  court.^  But  it  seems  to  us  that 
a  general  authority  to  issue  execution  cannot  be  dele- 
gated, except  where  the  law  authorizes  the  appointment 
of  a  deputy,  and  such  appointment  has  been  made;  and 
that  the  cases  referred  to  go  no  further  than  to  sustain 
executions  made  so  directly  under  the  eye  and  control 
of  the  officer  that  they  nmst  be  treated  as  his  acts. 
Executions  are  usually  issued  by  the  clerk  when  the 

>  Briggs  i".  Wardwcll,  10  Ma.sn.  .350.  An  officer  issuing  execution  while  a 
stay  bond  is  in  force  is  liable  as  a  trespaaaor.  Milliken  v.  Brown,  10  Scrg.  & 
R.  188. 

'  McMahan  v.  Colclough,  2  Ala.  70. 

»  Kylo  V.  Evans,  3  Ala.  482;  37  Am.  Dec.  705. 


§24  ISSUING  THE  ORIGINAL  EXECUTION.  46 

court  has  one,  and  by  the  judge  or  justice  when  the 
court  has  no  clerk.  In  New  York  they  may  be  issued 
by  the  plaintiff  or  his  attorney/  Bemg  a  mere  minis- 
terial aot,  the  clerk  is  not  disqualified  from  the  issuing 
of  an  execution  because  he  is  attorney  for  one  of  the 
parties.^  He  is  not  relieved  from  the  duty  of  issuing 
the  writ  by  the  judgment  being  uncertain  in  its  terms 
and  difficult  to  execute.^  An  execution  issued  by  a 
-person  having  no  authority  so  to  do  conferred  on  him 
by  law,  nor  by  delegation  from  some  competent  official, 
is  conceded  to  be  void.*  This  rule  applies  to  execu- 
tions which  appear  to  be  issued  by  the  proper  officer, 
but  which  in  fact  are  forgeries.^ 

§  24.  Eeirliest  Time  for  Issuing.  —  Ha™g  treated 
of  the  courts  from  which,  and  the  judgments  and  de- 
crees on  which,  and  the  persons  for  and  against  whom, 
execution  may  issue,  we  come  next  to  the  consideration 
of  the  time  during  which  such  issuing  may  properly 
be  made.  In  treating  this  subject,  we  shall  direct 
attention,  first,  to  the  earliest  period  at  which  an  ex- 
ecution may  properly  issue,  and  the  consequences  of  its 
issuance  before  that  period ;  and  second,  to  the  latest 
period  at  which  an  execution  may  properly  issue,  and 
the  consequences  of  its  issuance  after  tlie  expiration  of 
that  period.  As  an  execution  is  authorized  for  the 
purpose  of  making  effectual  the  judgment  or  order  of 
the  court,  it  must,  of  course,  follow  tliat  the  plaintiff 
may  have  it  issued  as  soon  as  the  time  comes  when  he 

1  Code  of  N.  Y.,  sec.  289. 

2  Blount  V.  Wells,  55  Ga.  282. 

3  Levy  V.  Blount,  15  La.  Ann.  573;  77  Am.  Dec.  198. 

*  Seaton  v.  Hamilton,  10  Iowa,  394;  Perry  v.  Whipple.  38  Vt.  278;  Purman 
Dewell,  35  Iowa,  170. 
=  SUvan  V.  Coffee,  20  Tex.  4;  70  Am-  Dec  371. 


47  ISSUING  THE  ORIGIXAL  EXECUTION.  §24 

is  entitled  to  the  satisfaction  of  his  judgment  or  decree, 
and  this  is  generally  immediately  upon  its  entry,  unless 
jDrocess  is  stayed  by  some  order  or  rule  of  court.^  It 
must  also  follow  that  there  is  no  authority  for  an  ex- 
ecution until  there  is  a  judgment  to  be  enforced.  If 
there  be  no  judgment,  a  writ  issued  in  anticipation  of 
such  judgment  is  void,  and  continues  invalid  though 
the  judgment  be  subsec[uently  rendered  and  entered." 
If,  hov\'ever,  a  judgment  is  rendered,  a  writ  of  execution 
may  issue  before  its  formal  entry.^  If  a  writ  so  issued 
were  assailed  and  sought  to  be  vacated  or  otherwise 
avoided,  it  would  generally  be  rescued  from  peril  by  a 
nunc  pro  tunc  entry  of  the  judgment  upon  which  it  was 
based.  In  Illinois,  it  appears  that  an  execution  issued 
upon  a  judgment  by  confession  in  advance  of  the  actual 
entr}'  of  such  judgment  is  unauthorized  and  void,  al- 
though every  act  had  been  done  and  every  fact  existed, 
making  it  the  unquestionable  duty  of  the  clerk  to  enter 
the  judgment.*  These  cases  seem  to  us  very  question- 
able. We  think  the  confession  havino^  been  made  in 
due  form,  and  everything  done  which  the  statute  ex- 
acted, judgment  thereupon  was  pronounced  by  the  law, 
and  was  therefore  legally  in  existence,  though  not  for- 
mally recorded  by  the  clerk.  His  failure  to  enter  it 
was  the  neglect  of  a  mere  ministerial  duty;  apd  where 
the  failure  to  enter  a  judgment  arises  from  such  ne- 
glect, it  is  generally  regarded  as  sufficiently  in  existence 
to  support  a  writ.  Doubtless  there  is  generally  no 
authority  for  the  issuing  of  an  execution  prior  to  the 

'  Seton's  Forma  of  Decrees.  Jiulgnients,  and  Orders,  4th  ed.,  15G1. 

»  Hathawa>  v.  tlowcll.  0  Tl.onip.  &  C.  453;  4  Hun,  470. 

»  Graham  v.  Lynn,  4  B.  Mon.  17;  39  Am.  Dec.  493. 

*  Ling  V.  King,  91  III.  571;  Cummins  v.  Holmea,  109  111.  15. 


§24  ISSUING  THE  ORIGINAL  EXECUTION.  48 

rendition  of  the  judgment/  But  to  this  ruie  there  are 
exceptions,  arising  in  eases  where  the  entry  of  judgment 
is  a  mere  ministerial  act,  as  where,  upon  the  verdict  of 
a  jury,  a  justice  of  the  peace  is  required  by  law  to  en- 
ter judgment  in  conformity  therewith.  In  such  cases, 
the  rendition  of  the  verdict  is  substantially  the  rendi- 
tion of  the  judgment."^  By  the  common  law,  as  soon 
as  final  judgment  was  signed,  and  before  its  entry  of 
record,  execution  might  issue,  ''provided  there  was  no 
writ  of  error  depending,  or  agreement  to  the  contrary."^ 
So  in  New  Jersey,  "the  established  practice  is  that  the 
plaintiff  may  issue  his  execution  immediately  after  the 
entry  of  judgment  nisi,  if  he  thinks  proper  to  do  so,  at 
the  risk,  however,  of  having  it  rendered  a  nullity,  by 
the  rule  to  show  cause  being  allowed  absolutely,  and 
without  directing  the  entry  of  final  judgment  for  the 
protection  of  plaintiff."  *  In  California,  execution  may 
issue  before  the  judgment  roll  is  made  up.^  But  it 
seems  that  the  common-law  practice  never  prevailed 
in  New  York;  and  that  the  practice  adopted  in  its 
stead  required  the  judgment  roll  to  be  filed  with  the 
clerk  before  issuing  execution.® 

^  Parker  v.  Frambes,  i  Pen.  156;  Lofton  v.  Champion,  1  Pen.  157;  Lee  v. 
Steelman,  1  Pen.  319;  Eector  v.  Gale,  Hardin,  78.  In  Missouri,  execution  can- 
not regularly  issue  until  the  motion  for  a  new  trial  has  been  denied.  Ste- 
phens V.  Brown,  56  Mo.  23. 

*  Freeman  on  Judgments,  2d  ed.,  sec.  53  a;  Lynch  v.  Kelly,  41  Cal.  232; 
Felton  V.  MuUiner,  2  Johns.  ISl;  Overall  v.  Pero,  7  Mich.  317;  Gaines  v. 
Betts,  2  Doug.  (Mich.)  98. 

^  Tidd's  Pr.  994.  But  a  writ  tested  before  the  time  of  signing  judgment  i» 
irregular.  Peacock  v.  Day,  3  Dowl.  P.  C.  291 ;  Englehart  v.  Duubar,  2  Dowl. 
P.  0.  202. 

*  Erie  R.  Co.  v.  Ackerson,  33  N.  J.  L.  33. 
^  Sharp  V.  Lumley,  34  Cal.  614. 

«  Barrie  v.  Dana,  20  Johns.  309;  Chicester  v.  Cande,  3  Cow.  503;  15  Am.  Dec. 
238;  Marvin  v.  Herrick,  5  Wend.  109;  Clute  v.  Clute,  4  Denio,  243;  Townshend 
V.  Wesson,  4  Duer,  342;  Macomber  v.  Mayor  of  N.  Y.,  17  Abb.  Pr.  35;  Morris 
V.  Patchin,  24  N.  Y.  398;  82  Am.  Dec.  311. 


49  ISSUING  THE  ORIGINAL  EXECUTION.  §24 

The  docketing  of  judgments  is  required  for  the  pur- 
pose of  imparting  notice  to  third  persons  of  the  exist- 
ence of  the  judgment  lien.  It  is  in  no  wise  essential 
to  the  existence  of  the  judgment;^  nor  is  it  in  general 
regarded  as  a  condition  precedent  to  the  issue  of  exe- 
cution^ in  any  case  where  the  same  is  issued  by  the 
court  wherein  judgment  was  rendered.  The  period  at 
which  execution  may  first  issue  has  been  the  subject 
of  such  varied  statutory  regulation  in  the  different 
states  that  it  cannot  be  fully  treated,  except  by  fur- 
nishino'   extracts   from  each    of  those  statutes.     And 

^Treeman  on  Judgments,  sec.  343. 

*  Hastings  v.  Cunningham,  39  Cal.  144;  MoUison  v.  Eaton,  IG  Minn.  426; 
10  Am.  Rep.  150;  Youngs  v.  Morrison,  10  Paige,  325;  Corey  v.  Cornelius,  1 
Barb.  Ch.  583;  Clark  v.  Dakin,  2  Barb.  Ch.  36.  The  2S7tli  section  of  the  Nev/ 
York  Code  of  Procedure  provides  that  execution  may  issue  "  to  the  sheriff  of 
any  county  where  judgment  is  docketed."  This  language  might,  with  equal 
force,  be  construed  as  limitation  or  an  extension  of  tiie  previous  authority  of 
the  court  to  issue  execution.  It  may  be  argued,  on  the  one  hand,  that  this 
provision  was  designed  solely  to  extend  the  authority  of  local  courts,  and  to 
enable  them  to  issue  writs  not  only  within  the  limit-s  of  their  own  jurisdiction, 
but  also  to  other  counties  in  which  the  judgment  had  been  docketed,  and  this 
we  think  the  more  reasonable  construction.  But  Mr.  Wait  construes  tlie  pro- 
vision as  a  limitation,  for  he  says:  "An  execution  cannot  regularly  issue  on  a 
judgment  for  the  payment  of  money  before  such  judgment  has  been  docketed." 
4  Vv'ait's  Pr.  6.  The  cases  cited  by  him  hardly  support  his  assertion.  In  the 
case  of  Stephens  v.  Browning,  1  Code  Rep.  123,  a  judgment  had  been  recovered 
in  New  York  City,  and  execution  against  the  real  and  personal  property  of  the 
defendant  had  issued  to  Oswego  County,  before  cany  transcript  had  been  dock- 
eted ia  the  last-named  county.  Tlie  court  held  that  the  execution  was  author- 
ized as  to  the  personal  and  unauthorized  as  the  real  estate,  and  permitted  it 
to  be  amended  so  as  to  run  against  per.sonalty  only.  In  Stouttenburgh  v. 
Vandenburgh,  7  How.  Pr.  229,  a  judgment  was  entered  in  Columbia  County 
and  a  transcript  sent  to  Greene  Count}^  The  execution  was  received  m  Greene 
County  one  day  before  the  trauscrijjt.  It  was  held  that  the  execution  became 
operative  in  the  hands  of  the  sheriff  from  the  time  the  judgment  was  actually 
docketed  in  Greene  County.  But  the  court  was  inclined  to  hold  that  in  all 
cases  before  execution  can  be  issued  to  any  county,  judgment  should  be  dock- 
eted. In  De  Agreda  v.  Mantel,  1  Abb.  Pr.  135,  as  in  the  case  just  cited,  the 
necessity  of  docketing  the  judgment  to  authorize  execution  in  the  county 
where  it  was  entered  was  not  involved;  but  the  court  expx-esscd  its  doubt  on 
the  subject. 

Vol.  I.  — 4 


§25  ISSUING  THE  ORIGINAL  EXECUTION.  50 

wherever  a  matter  is  so  much  under  the  control  of 
diverse  statutes,  we  think  it  better  to  turn  the  prac- 
titioners of  each  state  over  to  the  consideration  of  their 
own  statutory  compilations  than  to  attempt  the  recom- 
pilation  and  republication  of  tliese  statutes  as  a  part  of 
this  treatise.  We  may  say,  however,  in  regard  to  the 
general  policy  of  these  statutes,  that  many  of  them  au- 
tliorize  execution  immediately  after  the  entry  of  judg- 
ment;^ and  that  the  others,  which  postpone  the  right 
to  execution  to  a  later  date,  generally  have  provisions 
under  which,  in  cases  of  emergency,  immediate  execu- 
tion may  be  obtained  upon  applying  to  the  court  there- 
for.^ 

§  25.     The  Consequences  of  the  Premature  Issuing 

of  an  execution  are  next  to  be  considered.  An  execu- 
tion issued  in  Massachusetts,  in  violation  of  the  statute 
directinf>"  that  "no  execution  shall  be  issued  within 
twenty -four  hours  after  the  entry  of  the  judgment," 
was  adjudged  to  be  void,  and  the  title  derived  there- 

1  De  Witt  V.  Smith,  3  How.  Pr,  280;  Carpenter  v.  Vanscoten,  20  Ind.  52; 
People  V.  Bay  Co.,  11  Mich.  169;  Sharp  v.  Lumley,  34  Cal.  614. 

^  Fcrmerly  in  New  York  execution  could  not  issue  until  thirty  days  after 
entry  of  judgment.  Commercial  Bank  v.  Ives,  2  Hill,  355;  Stone  v.  Green, 
3  Hill,  469;  Van  Valkenburgh  v.  Harris,  3  Denio,  162;  Bell  v.  Bell,  1  How. 
Pr.  71.  •  In  Pennsylvania,  not  until  ten  days.  Bobyshall  v.  Openheimer,  4 
Wash.  C.  C.  3SS.  Not  until  four  days  in  Georgia.  Harris  r.  Wetmore,  5 
Ga.  64.  Ten  days  in  Kentucky.  Gen.  Stats.  Ky.,  ed.  of  1S73,  p.  417,  sec.  4. 
In  Florida,  the  same  as  in  Kentucky.  Bush's  Dig.  of  Fla.  324,  sec.  3.  In 
Alabama,  as  soon  after  adjournment  of  court  as  possible.  Sec.  3838  of  Code. 
In  Iowa,  may  issue  on  Sunday,  when  plaintiff  would  otherwise  lose  his 
debt.  Sec.  3028,  Iowa  Code.  In  Massachusetts,  execution  cannot  be  taken 
out  until  twenty-four  hours  after  entry  of  judgment.  Penniman  v.  Cole,  8 
Met.  501.  In  ^lissouri,  the  execution  ought  not  to  issue  before  the  deter- 
mination of  the  motion  for  a  new  trial.  Stephens  v.  Brown,  50  Mo.  23.  In 
order  to  keep  the  lien  of  an  attachment  alive  and  effectual,  it  has  been  held 
that  when  judgment  is  reversed  execution  ought  to  issue  thereon  within  a 
reasonable  time,  and  that  a  delay  of  more  than  a  year  is  uureasonablei  Speel- 
man  v.  Chaffee,  5  Col.  247. 


51  ISSUING  THE  ORIGINAL  EXECUTION.  §25 

from  was  disregarded^  In  the  same  state,  a  justice  of 
the  peace  who  issued  execution  within  less  than  twenty- 
four  hours  after  the  rendition  of  judgment  was  held 
liable  therefor  hi  an  action  of  trespass.^  But  a  very- 
decided  preponderance  of  the  authorities  is  against 
the  first  decision  above  referred  to,  and  in  favor  of  the 
proposition  that  the  premature  issuing  of  an  execution 
is  an  irregularity  merely.  The  execution  is  erroneous, 
but,  like  an  erroneous  judgment,  it  must  be  respected, 
and  may  be  enforced,  until  it  is  vacated  in  some  man- 
ner prescribed  by  law.^  No  one  but  the  defendent  can 
complain  of  it;  and  even  he  cannot  do  so  in  any  col- 
lateral proceeding.^  Under  an  act  of  Congress  pro- 
viding that  "until  the  expiration  of  ten  days  execution 
shall  not  issue,"  certain  executions  were  collaterally 
objected  to,  on  the  ground  that  they  were  issued  within 
ten  days,  but  the  court  said :  **  If  irregular,  the  court 
from  which  they  issued  ought  to  have  been  moved  to 
set  them  aside;  they  were  not  void,  because  the  mar- 
shal could  have  justified  under  them,  and  if  voidable, 
the  proper  means  of  destroying  their  efficacy  have  not 
been  pursued.""'  When  substantially  the  same  ques- 
tion arose  in  Missouri,  Judge  Ryland,  speaking  for  the 
supreme  court,  said:  "The  time  of  doing  the  deed 
only  is  relied  on  as  rendering  it  void.     I  am  satisfied, 

1  Penniman  v.  Cole,  8  Met.  49G. 

2  Briggs  V.  WarJwcll,  10  Mass.  356. 

3  Dawson  v.  Daniel,  2  Flip.  305;  Rosenfeld  v.  Palmer.  5  Daly,  318;  Scribner 
V.  Wliitcher,  9  N.  H.  63;  23  Am.  Dec.  70S;  Miller  v.  O'Baunou,  4  Lea,  398; 
Stanley  v.  Nels(m,  4  Humph.  483;  Carpenter  v.  Mechanics'  Bank,  1  Lea,  202; 
Wilkinson's  Appeal,  05  Pa.  St.  190. 

♦  Stewart  v.  Stocker,  13  Serg.  &  R.  199;  15  Am.  Dec.  589;  Lowber  & 
Wilmer's  Appeal,  8  Watts  &  S.  389;  42  Am.  Dec.  .302;  Wilkinson's  Appeal, 
65  Pa.  St.  190;  Lynch  i).  Kelly,  41  Cal.  232;  Allen  v.  Portland  Stage  Co.,  8 
Me.  209. 

*  Blaiue  v.  Sliip  Charles  Carter,  4  Crauch,  333. 


§26  ISSUING  THE  ORIGINi\JL  EXECUTION.  52 

from  reason  ami  authority  both,  that  the  time  is  not 
so  much  of  the  substance  of  the  power  and  act  as  to 
render  the  act  void."^  So  in  New  York,  against  tlie 
objection  that  an  execution  had,  contrary  to  the  statute, 
issued  within  thirty  days  after  the  rendition  of  judg- 
ment, the  court  of  appeals  held  that  "until  set  aside, 
although  issued  without  the  defendant's  consent,  the 
process  was  valid,  and  no  one  could  take  advantage  of 
such  irregularity  but  tlie  defendant  in  the  execution."^ 
Where  the  practice  requires  the  filing  of  the  judgment 
roll  to  precede  the  issuing  of  execution,  an  execution  is 
not  void  because  issued  before  sucli  filino;;  and  where 
the  issue  and  filing  are  on  tlie  same  day,  the  court  will 
not  make  any  inquiry  in  reference  to  fractions  of  the 
day,  but  will,  as  between  the  parties,  permit  the  writ 
to  stand  in  force.^  But  an  execution  properly  issued 
will  obtain  precedence  over  another  issued  on  the  same 
day,  if  the  judgment  roll  authorizing  the  latter  is  not 
filed  until  after  the  former  is  issued.  In  this  case,  the 
court  will  notice  a  fraction  of  a  day.*  An  execution 
sent  to  the  slieriff,  and  received  by  him  previous  to  the 
filing  of  the  record,  is  not  prematurely  issued,  if  the 
sheriff  be  directed  to  indorse  it  as  received  of  a  subse- 
quent day,  and  on  that  day  the  record  be  signed  and 
filed.^ 

§  26.  Executions  Issued  Contrary  to  Agreement 
between  the  parties  are  subject  to  the  same  rules  as 
other  premature  executions.     In  North  Carolina,  the 

1  Carson  v.  Walker,  16  Mo.  85.  » 

2  Bacon  V.  Cropsey,  7  N.  Y.  109. 

3  Jones  v.  Porter,  G  How.  Pr.  28G;  Clnte  v.  ante,  4  Deuio,  241;  Clute  v. 
Clute,  3  Denio,  26.3;  Small  v.  McChesney,  3  Cow.  19 

*  Marvin  v.  Herrick,  5  Wend.  109. 

*  Walters  v.  Sykes,  22  Wend.  566. 


53  ISSUIXG  THE  ORIGINAL  EXECUTION.  §27 

parties,  by  consent,  had  a  memorandum  made  upon  the 
record,  "no  fi.  fa.  to  issue  until  October,  or  until  or- 
dered."    The  plaintiff  issued  execution  in  contravention 
of  this  agreement.     This  execution  was  afterwards  col- 
laterally questioned,  when  the  court  held  thafc  "  it  was 
not  void,  but  was  a  sufficient  justification  to  the  sherifF 
in  proceeding  under  it  as  if  no  such  memorandum  had 
been  made."  ^     There  is  no  doubt,  however,  that  courts 
will,  on  proper  application,  enforce  all  agreements  made 
by  tlie  parties  for  the  stay  of  execution,  whether  en- 
tered on  the  record  or  not.     ''  I  have  knmvn,  if  a  judg- 
ment be  given  and  there  is  an  agreement  between  the 
parties  not  to  take  out  execution  till  next  term,  and 
they  do  it  before,  that  the  court  has  set  all  aside."- 
In  New  York,  where  judgment  had  been  entered  by 
confession,  the  court  afterward  set  aside  the  execution, 
being  convinced,  by  affidavits  filed  on  behalf  of  the  de- 
fendant, tliat  the  plaintiff  induced  the  confession  by 
agreeing  to  stay  execution  for  three  years.^     But  an 
agreement   procured    by   misrepresentations,   or   upon 
conditions  wliich  were  not  complied  with,  may  be  dis- 
regarded by  the  plaintiff,  who  may  at  once  issue  execu- 
tion.    The  court  will  not,  in  such  a  case,  interfere  in 
behalf  of  the  defendant.* 

§  27.  Latest  Time  for  Issuing.  —  By  tlie  common 
law,  a  i)laintiff  who  had  obtained  a  judgment  in  a  per- 
sonal action  was  compelled  to  attempt*  to  execute  it 
withui  a  year  and  a  day.  If  he  failed  to  do  so,  the 
right  to   execution    upon  tliat  judgment  was   forever 

'  Cody  r.  Quinn,  G  Ircd.  19.-?;  44  Am.  Dec.  75;  Sholton  v.  Fob,  PhiU. 
(N.  C. )  1  <  8. 

'  Twi.s.l'-n,  J.,  in  Veal  v.  VVarnor,  1  Mod.  20. 

*  M(  rritt  r.  Baker,  11  How.  Pr.  4."(G. 

*  lioluics  V.  DflabourJine,  ]  Browne,  132. 


§27  ISSUING  THE  ORIGINAL  EXECUTION.  54 

gone.  The  judgment  remained  a  mere  evidence  of 
indebtedness,  upon  \Yhicli  an  action  could  be  brought. 
In  such  action,  it  was  incumbent  on  the  defendant  to 
show  by  what  means;  if  any,  the  judgment  had  been 
satisfied.  The  rule  was  otherwise  in  real  actions. 
There  the  demandant  after  a  year  might  take  out 
scire  facias  to  revive  his  judgment.  By  statute  of 
Westminster  2,  13  Edw.  I.,  c.  45,  scire  facias  was 
given  to  the  plaintiff  to  revive  his  judgment  in  a 
personal  action.  But  after  this  statute,  as  before,  the 
time  within  which  an  execution  could  issue  on  the 
original  judgment  was  limited  to  a  year  and  a  day. 
In  the  greater  portion  of  the  United  States  the  com- 
mon-law rule  has  been  displaced  by  statutes.  These 
statutes  have  generally  fixed  the  time  within  which 
the  original  execution  can  issue  at  a  much  longer  period 
than  that  fixed  by  the  common  law.^  The  requirement 
of  the  law,  by  which  plaintiff,  after  delaying  for  a  year 
and  a  day  the  issuing  of  his  original  execution,  is  com- 
pelled to  sue  out  a  scire  facias  and  obtain  a  judgment 
thereon  before  he  can  have  execution,  is  intended  for 
the  protection  of  the  defendant.  He  need  not  seek 
this  protection.  He  may,  by  consent,  authorize  the 
entry  of  a  judgment  of  revivor,  without  putting  the 
plaintiff  to  his  scire  facias;"  or  he  may,  by  agreement 

^  In  Connecticut  and  Louisiana  executions  may  issue  at  any  time  during  the 
life  of  the  parties.  Denison  v.  Williams,  4  Conn.  404;  Harper  v.  Terry,  16 
La.  Ann.  216.  In  Alabama,  within  ten  years.  Perkins  v.  B.  I.  &  C.  Co.,  77 
Ala.  403.  In  Iowa,  at  any  time  before  the  judgment  is  barred  by  the  statiite 
of  limitations.  Sec.  3025  of  Code.  In  Illinois,  within  seven  years.  Hind's 
Stats,  of  111.  622,  sec.  6;  Stribling  v.  Prettyman,  57  111.  371;  but  see  Chase  v. 
Frost,  60  111.  143.  In  Florida,  within  five  years.  Bush's  Dig.  of  Fla.  516, 
sec.  228.  In  Arkansas,  Indiana,  and  Minnesota,  within  ten  years.  Hanly  v. 
Caneal,  14  Ark.  524;  Plough  v.  Reeves,  33  Ind.  181;  Plough  v.  Williams,  33 
Ind.  182;  Davidson  v.  Gaston,  16  Minn.  230.  In  West  Virginia,  within  two 
years.     Gardner  v.  Landci'aft,  6  W.  Va.  36. 

2  Harmer  v.  Johnson,  14  Mees.  &  W.  336;  3  Dowl.  &  L.  38;  9  Jur.  669;  14 
L.  J.  Ex.  292. 


55  ISSUING  THE  ORIGINAL  EXECUTION.  §27  a 

with  the  plaintiff,  waive  his  right  to  object  to  the  issu- 
ing of  execution  after  a  year  and  a  clay.  There  is  no 
reason  why  such  an  agreement  should  not  be  enforced. 
An  execution  issued  within  the  time  agreed  upon  is 
regular;  and  the  want  of  scire  facias  cannot  be  urged 
against  it  by  any  person  nor  for  any  purpose/ 

§  27  a.  Executions  Issued  on  Motion  without 
Scire  Facias.  —  In  many  of  the  states  the  remedy 
by  scire  facias  is  no  longer  employed;  but  after  the 
lapse  of  a  time  designated  in  the  statute,  an  execu- 
tion can  issue  only  upon  order  of  the  court,  granted 
on  motion,  on  proof  that  the  judgment  remains  un- 
satisfied. In  California,  certain  judgments  may  be 
enforced  at  any  time,  while  upon  others,  no  execution 
can  issue  after  five  years.  Section  685  of  the  Code  of 
Civil  Procedure  of  that  state  reads  as  follows:  "In  all 
cases  other  than  for  the  recovery  of  money,  the  judg- 
ment may  be  enforced  or  carried  into  execution  after 
the  lapse  of  five  years  from  the  date  of  its  entry,  by 
leave  of  the  court,  upon  motion  or  by  judgment  for  that 
purpose,  founded  upon  supplemental  pleadings."  Under 
this  section,  the  question  arises  whether  a  judgment 
directing  the  sale  of  property,  but  not  imposing  a  per- 
sonal liability  on  any  one,  is  a  judgment  *' other  than  for 
the  recovery  of  money."  The  question  has  not  yet 
been  authoritatively  determined,  but  we  think  it  must 
surely  be  answered  in  the  negative.  This  section,  in 
our  opinion,  divides  judgments  into  two  great  classes: 
1.  Those  the  object  or  result  of  which  is  the  recov- 
ery of   money;    and    2.    Those   the    object   or   result 

1  Cooper  V.  Norton,  IG  L.  J.  Q.  B.  3G4;  Howell  r.  Stratton,  2  Smith,  65; 
Morgan  r.  Burgess,  1  Dowl.,  N.  S.,  8j0;  Morris  v.  Joues,  3  Dowl.  &  11.  003:  2 
Baru.  &  C.  242.' 


§27  a  ISSUING  THE  ORIGINAL  EXECUTION.  56 

of  wliicli  is  to  recover  sometliing  other  than  money. 
In  the  first  class,  execution  cannot  issue  after  five 
3'ears.  The  object  of  an  action  to  obtain  the  sale  of 
property  is  to  compel  the  papiient  of  a  debt  or  charge. 
The  plaintiff's  claim  can  at  any  time  be  satisfied  by 
the  payment  of  money.  He  is  not  entitled  to  recover 
possession  of  any  specific  property'  or  thing ;  but  only 
to  obtain  or  recover  money.  It  is  true  that  in  seek- 
ing compulsory  payment  he  may  be  confined  to  certain 
designated  property,  but  still  the  thing  sought  and 
granted  is  none  the  leas  the  recovery  of  money,  and 
nothing  but  money,  and  the  judgment  resulting  is 
therefore  one  for  the  recovery  of  money.  The  vievi^s 
we  have  expressed  seem  in  harmony  with  those  avowed 
by  Professor  Pomeroy,  at  section  112  of  his  work  on 
equity  jurisprudence.  In  treating  of  equitable  reme- 
dies, he  names  as  the  seventh,  "remedies  of  pecuniary 
compensation,  or  those  in  which  the  relief  consists  in 
the  award  of  a  sum  of  money";  and  describing  these 
remedies  of  pecuniary  compensation,  he  says:  "These 
remedies,  whose  final  object  is  the  recovery  of  money, 
are  of  three  distinct  species,  which  differ  considerably 
in  their  external  form  and  incidents,  but  agree  in  their 
substance,  in  the  intrinsic  nature  of  the  final  relief." 
He  then  mentions  as  one  of  these  species  the  case  "in 
which  the  relief  is  not  a  general  pecuniary  judgment, 
but  is  a  decree  of  money  to  be  obtained  and  paid  out 
of  some  particular  fund  or  funds."  He  admits  that,  on 
the  first  view,  a  judgment  of  this  class  may  appear  to 
be  something  more  than  a  mere  money  judgment;  but 
adds  that  "a  closer  view  shows  that  the  real  remedy, 
the  final  object  of  the  proceeding,  is  the  pecuniary  re- 
covery. Among  the  familiar  examples  of  this  species 
is  the  suit  to  foreclose  a  mortgage  of  land,  common 


57  ISSUING  THE  ORIGINAL  EXECUTION.  §27  a 

throughout   the   United    States,   by  the    sale   of  the 
mortgaged  premises." 

Ill  the  other  states  in  which- the  risfht  to  issue  exe- 
cution  after  a  certain  time  is  granted  by  statute,  it 
generally  depends  not  upon  the  character  of  the  judg- 
ment, but  upon  the  fact  of  its  remaining  unsatisfied.^ 
This  fact  must  be  shown  to  the  court,  and  usually  the 
defendant  is  entitled  to  notice  of  the  application  for  the 
writ,  and  may  resist  if  he  can  show  any  cause  therefor. 
Whether  a  writ  issued  without  leave,  where  leave  for  its 
issuing  should  have  first  been  obtained  in  the  mode 
designated  in  these  statutes,  is  void  or  voidable  only,  is 
a  question  still  involved  in  doubt  and  conflicting  judi- 
cial opinion.  On  the  one  hand,  it  is  insisted  that  as 
the  statute  declares  that  the  writ  shall  not  issue  unless 
it  is  shown  to  the  court  that  the  judgment  remains  un- 
satisfied, the  authorization  of  such  issuing  is  a  judicial 
act,  there  is  no  more  foundation  on  whicli  to  rest  the 
writ  than  if  no  original  judgment  had  been  entered;^ 
on  the  otiier,  the  existence  of  the  original  judgment  is 
regarded  as  sufficient  to  support  the  writ,  and  the  ab- 
sence of  the  order  granting  leave  is  treated  as  a  mere 
irregularity  justifying  the  vacating  of  the  writ,  but  not 
destroying  or  limiting  its  force  while  it  remains  unva- 
cated.^  If  an  execution  issues  at  a  time  when  l)oth  the 
time  within  which  execution  could  originally  issue  and 
within  which  the  judgment  could  be  revived  have  both 
elapsed,  it  is  obviously  void  because  there  can  then  be 
no  circumstance  in  which  it  could  be  directed  to  issue."* 

*  Rv'eves  v.  Plough,  43  Iiid.  O.'iO. 

*  Ralliiu  V.  Mclntyrc,  87  Mo.  4'JG;  State  v.  McArthur,  5  Kau.  280;  Halsey 
V.  Van  Vlict,  27  liau.  474. 

=•  Sai».!liii  V.  An<Icr.oa,  70  Ala.  403;  Mariner  v.  Coon,  16  Wis.  400;  Martin 
V.  Pratlier,  82  Iml.  535;  Lawrence  v.  (iraiiiljling,  13  S.  C.  120;  Bank  of  (Jene- 
see  V.  Spencer,  18  N.  Y.  1^4;  Wi:icJ>reiner  v.  Johnson,  7  Abb.  Pr.,  N.  S.,  205. 

*  George  v.  Middough,  62  Mo.  5J'J;  Lyon  v.  Ru3.s,  84  N.  C.  588. 


§28  ISSUING  THE  ORIGINAL  EXECUTION.  58 

Sometimes  there  is  an  apparent  conflict  between  differ- 
ent parts  of  a  state  statute  relating  to  tliis  subject,  one 
part  giving  the  right  to  issue  execution  without  im- 
posing any  hmit  of  time,  and  another  part  limiting  the 
time  within  which  an  action  could  be  brought  on  a  judg- 
ment, and  thereby  implying  that  after  such  time  it  is 
functus  ojjicio.  In  New  York,  it  is  said  that  the  limi- 
tation of  the  remedy  by  action  does  not  imply  any  limi- 
tation of  the  remedy  by  execution,  and  therefore  that 
an  execution  may  properly  issue  to  enforce  a  judgment, 
all  aptions  on  which  are  barred  by  the  statute  of  limita- 
tions/ This  position  seems  logically  sound.  Never- 
theless, we  believe  it  at  variance  with  the  general  cur- 
rent of  authority.^  The  majority  of  the  cases  treat  the 
statute  of  limitations  as  a  practical  extinguishment  of 
the  judgment;  and  in  one  case  it  has  been  held  that 
the  issuino-  of  an  execution  after  the  statute  of  limita- 
tions  once  became  operative  cannot  be  sustained,  even 
by  shov^ing  that  the  defendant  has  made  a  new  prom- 
ise under  which  an  action  on  the  judgment  could  be 
successfully  prosecuted.^ 

§  28.  In  Computing  the  Year  and  a  Day  at  Com- 
mon Liaw,  the  time  in  which,  by  writ  of  error  or  by 
agreement,  the  execution  w^as  stayed,  was  excluded,* 
and  so  was  the  time  during:  which  the  failure  to  take 
out  execution  was  occasioned  by  the   act  or  fault  of 

1  Kincaid  v.  Richardson,  25  Hun,  237;  9  Abb.  N.  C.  315;  Waltermere  v, 
Westover,  14  N.  Y.  17. 

2  Jerome  v.  Williams,  13  Midi.  521;  People  v.  Wayne,  37  Mich.  287;  Mc- 
Donald V.  Dickson,  85  N.  C.  248;  McGraw  v.  Reason,  3  Lea,  485. 

^Cannon  v.  Laman,  7  Lea,  513. 

*  1  Bac.  Abr.,  tit.  Execution,  H;  Bellasis  v.  Hanford,  Cro.  Jac.  364;  Booth  v. 
Booth,  6  Mod.  288;  Ciomwell  v.  Andrews,  Yel.  7;  Layton  v.  Garnon,  5  Coke, 
88;  Watkius  v.  Haydon,  3  W.  Black.  7G2;  Hiscocks  v.  Kemp,  3  Ad.  &  E.  676. 


59  ISSUING  THE  ORIGINAL  EXECUTION.  §28 

the  defendant.^  In  the  United  States  the  authorities 
are  divided  upon  the  question  whether  the  time  in 
which  execution  may  issue  is  extended  either  by  a 
stay  of  proceedings,  or  by  any  other  act  of  the  defend- 
ant. In  North  Carohna  the  common-law  practice  pre- 
vails, and  the  defendant  cannot  complain  of  a  delay 
occasioned  by  his  agreement.  If  he  procures  a  stay, 
the  execution  may  issue  within  a  year  and  a  day  after 
such  stay  expires,-  The  same  rule  applies  in  Kentucky 
where  any  definite  stay  has  been  agreed  upon,^  or  when 
any  judgment  or  decree  is  suspended  in  its  operation 
until  some  further  day  after  its  entry.*  The  rule  has 
also  been  frequently  applied  in  the  United  States  where 
the  delay  was  occasioned  by  an  injunction.^  In  Texas 
a  statute  purported  to  suspend  the  right  to  execution, 
but  it  was  finally  declared  to  be  unconstitutional  and 
void.  But  many  judgment  creditors  had,  before  this 
decision  was  reached,  respected  the  law,  and  neglected 
to  take  out  execution.  In  fact,  it  was  impossible  to 
obtain  execution,  because  no  clerk  of  any  court  would 
issue  it.  When  the  question  subsequently  arose 
whether  the  time  during  which  this  law  was  sup- 
posed to  be  valid  should  be  computed  against  the 
plaintiff  in  determining  whether  his  judgment  had  be- 
come' dormant,  the  supreme  court  said:  ''He  was  not 
bound  to  disregard  this  law  at  his  peril,  though  it  was 

^  Mitchel  V.  Cue,  2  Burr.  660;  Bosworth  v.  Phillips,  2  W.  Black.  7S4;  Blaud 
V.  Darley,  3  Term  Rep.  530. 

■^  Wood  V.  Bagley,  12  Ired.  87. 

»  Nicholson  v.  Hansley,  Litt.  SeL  Cas.  300;  Pollard  v.  Pollard,  4  T.  B.  ]Moa. 
360. 

*  Long  V.  Morton,  2  A.  K.  Marsh.  40. 

*  Gibbes  v.  Mitchell,  2  Bay,  120;  United  States  v.  Hanford,  19  Johns.  173; 
Nolan  XK  Seekri^ht,  U  Munf.  185;  Smith  v.  Charlton,  7  Gratt.  447;  Eppes  v. 
Randolph,  2  Call,  ISO;  Hutsonpillcr  v.  Stover,  12  Gratt.  582;  Peunock  v.  Hart, 
8  Scrg.  &  R.  37G. 


§2S  ISSUING  THE  ORIGINAL  EXECUTION.  60 

afterward  hokl  to  be  unconstlutional,  and  it  is  insisted 
that  until  so  held  none  lost  tlioir  rights  by  observing  it 
as  a  ride  oi'  action.  It  is  within  the  knowledge  of  all 
that,  until  the  decision  in  the  case  of  Jones  v.  ]\Ic- 
Illahan,  parties  could  not  procure  executions,  — the 
clerks  would  not  issue  them;  and  we  presume  that 
such  a  construction  will  not  now  be  put  upon  the  law 
as  Wv)uld  have  compelled  every  judgment  creditor  in 
the  state  to  resort  to  a  mandamus  against  the  clerk,  or 
lose  his  right  to  an  execution  on  his  judgment."^  But 
in  California,  the  time  during  which  a  stay  of  execu- 
tion is  in  force,  though  granted  by  the  court,  is  com- 
puted as  part  of  the  five  years  within  which  execution 
may  issue."  In  the  same  state,  although  no  personal 
execution  can  issue  in  a  foreclosure  suit  until  the  prop- 
erty has  been  sold  and  the  deficiency  ascertained,  the 
time  in  w'hich  this  deficiency  is  being  ascertained  is 
computed,  and  plaintiff  can  have  no  execution  after  five 
years  from  the  entry  of  the  original  decree.^  In  New 
York  we  understand  it  to  be  held  that  "tlie  provision 
of  the  code  limiting:  the  time  within  which  execution 
may  issue,  as  of  course  to  five  years,  applies  only  to  a 
case  where  the  risfht  to  issue  has  continued  during  that 
time."*  Hence  if  a  judgment  be  reversed  by  the  su- 
preme court,  and  subsequently  affirmed  by  the  court  of 
appeals,  the  intermediate  time  must  be  excluded  in  com- 
puting the  time  within  which  execution  may  issue.^ 

>  Phillips  V.  Lesser,  32  Tex.  750,  followed  in  Sessuma  v.  Botts,  34  Tex.  335; 
Cravans  v.  Wilson,  35  Tex.  52. 

2  Solomon  V.  IJ.Iaguire,  29  Cal.  236. 

3  Bowers  V.  Crary,  30  Cal.  C23;  Stout  v.  Macy,  22  Cal.  649;  contra,  Cupfer 
V.  Frank,  Go  How.  Pr.  39G. 

*  Underwood  v.  Green,  10  Alb.  L.  J.  34G;  see  Lytle  v.  Cincinnati  Mfg.  Co., 
4  Ohio.  4.:9;  Welsh  v.  Child.s,  17  Ohio  St.  319. 
'•'  Undcxwood  v.  Green,  oG  N.  Y.  247. 


61  ISSUING  THE  ORIGIXAL  EXECUTION.  §29 

§  29.  Validity  of  Executions  on  Dormant  Judg- 
ments.— The  consequences  of  issuing  an  execution 
after  a  year  and  a  day  are  the  same  as  the  consequences 
of  a  premature  issue.  The  writ  is  voidable,  but  not 
void.  The  defendant  ma}^  take  proceedings  to  have  it 
set  aside.  If  he  chooses  to  interpose  no  objection  to 
the  irregularity,  others  cannot  do  so  for  him.  Even 
he  cannot  attack  it  collaterally;  and  a  levy  and  sale 
made  under  it  are  sufficient  to  transfer  his  title.'  The 
decisions  made  under  the  English  statute  requiring  the 
original  execution  to  issue  within  a  year  and  a  day 
seem  to  be  equally  applicable  to  cases  w^here  executions 
have  issued  at  too  late  a  day  under  American  statutes. 
Still  there  are  American  courts  wdiich  have  declared 
executions  issued  in  the  absence  of  an  order  of  court 
void.  These  decisions  are,  however,  in  the  main  based 
on  a  misconception  of  the  rules  generally  applied  at 
common  law  to  executions  issued  on  dormant  judo-- 
ments  in  the  absence  of  their  revivor  by  scire  facias} 
The  statutes  of  Wisconsin  and  New  York  provide  that, 
after  a  period  of  time  therein  specified,  execution  shall 

»  Ripley  v.  Arledge,  94  N.  C.  407;  Brevard  v.  Joues,  50  Ala.  221;  Morgan 
t'.  Evaua,  72  111.  58G;  12  Am.  Rep.  154;  Pierce  r.  Alsop,  3  Barb.  Cii.  184; 
Mitchell  r.  Evans,  5  How.  (Mias.)  54S;  37  Am.  Dec.  IGO;  Brown  v.  Long,  1 
Iretl.  11)0;  3G  Am.  Dec.  43;  Ingram  v.  Belk,  2  Strob.  208;  47  Am.  Dec.  591; 
Mosely  r.  E.I  wards,  2  Fla.  440;  Overton  r.  Perkins,  Mart.  &  Y.  367;  Simmona 
V.  Wood,  G  Yerg.  521 ;  Jackson  v.  Bartlett,  8  Johns.  3G4;  Willard  v.  Whipple, 
40  Vt.  219;  BeaJo  v.  Botetourt,  10  Cratt.  281;  Doe  r.  Ilarter,  1  Cart.  431; 
Oxljy  V.  Mizle,  3  Muipli.  250;  Weaver  v.  Cryer,  1  Dev.  337;  Portia  v. 
Parl:er,  22  Tex.  707;  Andrew.^  r.  Richardson,  21  Tex.  287;  Hancock  v.  Mctz, 
15  Tex.  205;  Sydnor  v.  Roberts,  13  Tex.  598;  G5  Am.  Dec.  84;  Boggess  v. 
Howard.  40  Tex.  153;  Vastine  r.  Fury,  2  Serg.  &  R.  420;  Itcynolds  v.  Corp, 
3  CaiiicH,  271;  Patrick  v.  Johnson,  3  Lev.  403;  Woodcock  r.  Bennet,  1  Cow. 
711;  13  Am.  Dec.  508;  Ontario  Bank  r.  Hallett,  8  Cow,  192;  Howard  u.  Pitt, 
1  Salk.  201;  Daw.son  r.  Shepherd,  4  Dev.  497;  Delisle  ?\  Dewitt,  18  U.  C.  Q.  B. 
155;  Harris  v.  Cornell,  7  Chic.  L.  N.  345;  Richards  r.  Allen,  3  E.  D.  Smith, 
.399;  Elliott  V.  Knott,  14  Md.  121;  SUte  r.  Morgan,  7  Ired.  387;  47  Am.  Dec. 
329;  II dl  V.  Newman,  07  Tex.  205. 

*  iice  9  28  a. 


§29  ISSUIXG  THE  ORIGINAL  EXECUTION.  62 

issue  only  upon  motion,  and  b}^  leave  of  the  court.  In 
both  states,  executions  issued  without  leave  of  the 
court  have  been  sustained.^     The  reasoning  on  which 

1  Selsby  v.  Redlon,  19  Wis.  17;  Jones  v.  Davis,  22  Wis.  421,  anrl  24  Wis. 
229.  The  following  is  the  full  opinion  of  the  supreme  court  of  Wisconsin  on 
this  subject,  given  in  Mariner  v.  Coon,  IG  Wis.  408:  "The  question  presented 
by  this  case  is,  whether  an  execution  issued  upon  a  dormant  judgment,  with- 
out ^fiave  of  court,  is  void,  or  only  voidable.  If  void,  no  sale  can  be  made 
under  it,  and  the  purchaser  acc^uires  no  title.  But  if  voidable,  the  sale  may  be 
valid,  notwithstanding  the  omission  to  obtain  leave.  We  are  of  opinion  that 
such  an  execution  is  merely  voidable,  and  therefore  that  no  advantage  can  be 
taken  of  the  irregularity,  except  in  a  direct  proceeding  to  set  it  aside. 

"  The  rule  at  common  law  is  well  known.  If  the  plaintiff  failed  to  take  out 
execution  within  a  year  and  a  day,  extended,  in  many  of  the  states,  by  statute, 
to  two  years  from  the  time  the  judgment  became  final,  it  could  not  be  regu- 
larly issued  thereafter  without  reviving  the  judgment  by  scire  facias.  The 
rule  was  founded  upon  a  presumption  that  the  judgment  had  been  satisfied, 
which  drove  the  plaintiff  to  a  new  proceeding  to  show  that  it  had  not;  and  yet 
it  was  invariably  held  that  an  execution  taken  out  after  tliat  time,  and  wiohout 
scire  facials  or  judgment  of  revivor,  was  not  null,  but  simply  irregular.  The 
defendant  might,  if  he  desired,  interpose  and  set  it  aside  upon  motion;  but  if 
he  neglected  to  do  so,  it  was  considered  an  implied  admission  that  the  judg- 
ment was  still  in  full  force.  He  might  waive  the  irregularity,  and  tlius  avoid 
the  expense  of  a  scire  facias.  See  Irwin's  Lessee  v.  Dundas,  4  How.  79;  and 
Doe  V.  Harter,  2  Cart.  252,  and  the  cases  cited. 

"But the  code  (sections  192  and  193  of  the  original  act,  now  sections  1  and  2 
of  chapter  134,  Revised  Statutes)  prescribes  a  different  practice,  and  it  is  upon 
thist  hat  the  counsel  for  the  defendants  chiefly  relies.  When  theexecvition  in 
controversy  was  issued,  the  period  was  fixed  at  two  years  from  the  entry  of  judg- 
ment. It  is  now  enlarged  to  five.  (Laws  18G1,  chap.  140.)  After  tliat  period 
has  elapsed,  it  is  provided  that  'an  execution  can  be  issued  only  by  the  leave  of 
the  court,  upon  motion,'  etc.  This  language  is  said  to  take  away  all  power, 
except  it  be  acquired  in  the  manner  prescribed,  and  to  render  every  process 
issued  in  contravention  of  it  void  for  want  of  jurisdiction.  Vvere  we  to  sup- 
pose the  legislature  to  be  speaking  with  reference  to  the  question  of  power,  then 
there  is  nothing  in  their  language  inconsistent  with  the  position  of  counsel, 
and  we  might  adopt  his  views.  But  we  are  not  at  liberty  to  act  upon  this  sup- 
position. Upon  looking  to  the  previous  state  of  the  law,  and  to  other  pro- 
visions of  the  act,  we  see,  very  clearly,  that  it  was  a  matter  of  practice  with 
which  the  legislature  were  dealing,  a  question  as  to  the  form  of  proceeding 
which  should  thenceforth  be  pursued,  and  not  one  which  necessarily  affected 
the  jurisdiction  in  case  the  new  practice  was  not  complied  with.  By  section  331 
of  the  original  act  (section  1,  chapter  IGO,  Revised  Statutes),  the  writ  of  scire 
facias  is  virtually  abolished.  The  remedies  heretofore  obtainable  in  that  form 
may  be  obtained  by  civil  action  under  the  provisions  of  the  code.  But  by  the 
particular  provision  of  section  2,  chapter  134,  above  referred  to,  the  remedy  by 


63  ISSUING  THE  ORIGINAL  EXECUTION.  §29 

all  these  decisions,  whether  made  under  English  or 
American  statues,  rests,  is  this:  the  judgment,  not- 
withstanding the  lapse  of  the  year  and  a  day,  or  other 
time  designated,  is,  unless  actually  satisfied,  still  in 
force.  From  the  lapse  of  time,  the  presumption  may 
be  indulged  that  a  satisfaction  has  taken  place,  or  that 
some  reason  exists  for  the  non-issuance  of  execution. 
To  give  the  defendant  an  opportunity  of  showing  cause 
against  the  execution,  the  plaintilT  is  required  to  bring 
him  before  the  court  by  scire  facias  or  by  motion,  and 
thus  give  him  an  occasion  to  show  whether  the  judg- 
ment has  been  satisfied.  But  as  the  poiuer  to  issue 
execution  still  exists,  its  issuance  without  the  scire 
facias  or  motion  is  merely  the  erroneous  exercise  of  a 

motion  to  revive  a  judgment  which  has  become  dormant  by  lapse  of  time  is 
substituted.  Hence  the  peculiar  significance  of  the  word  'only,'  upon  which 
the  counsel  insists  so  strongly  to  show  a  want  of  jurisdiction.  The  execution 
shall  be  issued  o«/(/ upon  motion;  otherwise  the  plaintiff  might  resort  to  the 
remedy  by  civil  action.  It  apuears,  therefore,  that  the  consequences  of  a 
departure  from  the  practice  prescribed  by  statute  are  the  same  as  they  were  at 
common  law.  It  is  a  simple  irregularity,  whicli  the  execution  debtor  may 
waive,  and  which  it  seems  he  did  do  in  this  case."  The  view  here  taken  by 
the  Wisconsin  court  is  supported  by  the  following  opinion  of  the  New  York 
court  of  appeals:  "There  was  always  a  time  after  which  a  party  who  had 
recovered  a  judgment  was  not  at  liberty  to  sue  out  execution  without  an  appli- 
cation to  the  court  Formerly,  the  time  was  a  year  and  a  day;  and  the  form 
of  obtaining  an  award  of  execution,  when  one  had  not  been  issued  in  time, 
was  by  gclrbfaclis  qnnre  execulionem  non.  Afterward,  it  was  extended  by  the 
Revised  SUtutes  to  two  years.  2  R.  S.  363,  sec.  1.  By  the  code  it  was 
further  extended,  as  we  have  seen,  to  five  years,  and  the  mode  of  obtaining 
leave  was  an  application  to  the  court  on  motion.  Under  the  former  practice 
it  was  well  settled  that  the  execution,  if  issued  too  late,  was  not  void. 
Woodcock  r.  Bcnuet,  1  Cow.  711;  13  Am.  Dec.  5G8.  It  was  liable  to  be  set 
aside  on  motion,  but  such  motion,  like  all  others,  must  be  made  promptly; 
and  if  it  appeared  that  the  def^ndaat  had  consented  to  the  execution  being 
issued,  or  if  there  were  any  circumstances  which  in  fairness  and  equity  pre- 
cluded him  from  availing  himself  of  the  irregularity,  the  motion  would  not 
prevail.  Morris  v.  Jones,  2  Barn.  &  C.  232.  There  is  no  reason  why  the 
Ba.iie  practice  should  not  ol)tain  under  tlic  code."  Bank  of  Genesee  v. 
Spencer,  18  X.  Y.  1.34;  followed  in  Winebrener  v.  Johnson,  7  Abl).  Pr.,  N.  S., 
203;  Union  Bank  of  Troy  v.  Sargent,  35  How.  Pr.  87;  53  Barb.  ■422. 


§30  ISSUING  THE  ORIGINAL  EXECUTION.  64 

conceded  power,  and  must,  like  all  other  errors,  be 
correctecl  b}^  some  appropriate  proceeding ;  ai\d  if  not 
so  corrected,  nmst  bo  respected  as  fully  as  though  free 
from  error.  But  there  are  statutes  under  which  the 
time  to  issue  execution  is  limited  absolutely,  and  no 
provision  is  made  for  revivor,  nor  for  an}''  means  by 
which  further  execution  can  be  obtained  on  that  judg- 
ment. Under  such  statutes,  we  infer  that,  at  the 
expiration  of  the  statutory  period,  the  'power  to  issue 
execution  must  also  expire,  and  therefore  that  a  subse- 
quent execution  is  void.^  The  statute  of  limitations 
may  have  interposed  a  bar  to  the  judgment,  and  have 
destroyed  its  vitality.  If,  in  such  a  case,  execution 
should  issue  without  any  order  of  court,  we  think,  with 
Mr.  Justice  Breese,  of  the  supreme  court  of  Illinois, 
that  "it  would  be  absurd  to  give  a  fieri  facias  more 
vitality  than  the  judgment  on  which  it  issued.""^ 

§  30.  Validity  of  Executions  on  Dormant  Judg- 
ments, as  between  the  Parties. — The  authorities  cited 
in  the  preceding  section  show  that  the  purchaser  under 
an  execution  based  upon  a  dormant  judgment  will  be 
protected.  It  remains  to  us  to  consider  the  effect  of 
such  execution  between  the  parties.  In  the  case  of 
Blanchena}'-  v.  Burt,  in  the  court  of  Cjueen's  bench,  the 
action  was  for  false  imprisonment.  The  defendant  jus- 
tified the  imprisonment  under  a  ca.  sa.,  issued  in  a  suit 
of  Burt  V.  Blanchenay;  and  the  replication  showed  the 
ca.  sa.  to  have  been  issued  after  a  year  and  a  day,  without 
any  revivor  by  scire  facias  or  otherwise.     The  defend- 

1  White  V.  Clark,  8  Cal.  513;  Kem?  v.  Graves,  26  Cal.  15G;  Bates  v.  James, 
3  Duer,  45;  Givcn3  v.  Campbell,  20  Iowa,  79. 

*  Scammou  v.  Swartwout,  35  111.  344.     But  sec  §  28  a. 


65  ISSUING  THE  ORIGINAL  EXECUTION.  §30 

ant  was  held  to  be  protected  by  his  writ.^  The  only- 
redress  which  the  defendant  has,  when  execution  has 
improperly  issued  on  a  dormant  judgment,  is  by  motion 
to  quash  such  execution.  The  defendant,  if  he  does 
not  make  such  motion  in  a  reasonable  time,  by  his  de- 
lay assents  to  the  irregularity'.  "The  plaintiff  is  put 
to  a  scire  facias,  that  the  defendant  may  have  an  op- 
portunity of  showing  that  the  debt  is  paid,  and,  as  it 
is  intended  for  his  benefit,  he  may  dispense  with  the 
writ,  either  by  express  agreement,  or  by  conduct  which 
amounts  to  a  waiver,  and  this,  in  fact,  is  frequently  done 
when  the  defendant  is  aware  that  the  debt  is  not  paid 
or  otherwise  satisfied.  When  an  irregularity  has  oc- 
curred, it  is  the  duty  of  the  opposite  party  to  take 
advantage  of  the  defect  at  the  earliest  opportunity; 
otherwise,  in  consequence  of  his  own  laches,  he  will  be 
decreed  to  have  waived  every  advantau'c  arisins:  from 
it.  It  would  be  unjust  that  the  defendant  should  lie 
by,  with  a  knowledge  of  an  error,  and  by  this  means 
delay  his  adversary,  and  expose  him  to  unnecessary 
trouble  and  expense.     Courts  are  desirous,  or  should 

>4  Q.  B.  707;  3  Gale  &  D.  613;  7  Jur.  575;  12  L.  J.  Q.  B.  291.  In  this  case. 
Lord  Denham,  C.  J.,  delivered  the  judgment  of  the  court.  After  having 
shortly  stated  the  pleadings,  and  in  particular  the  objection  raised  by  the 
replication,  that  the  ca.  sa.  wsis  absolutely  void,  having  issued  on  a  judgment 
more  than  a  year  old  without  a  act.  /a.,  his  lordship  said:  "  Tlie  plaintifiF  ar- 
gues that  it  is  absolutely  void  for  this  fault,  relying  on  tlie  language  of  this 
court  in  Mortimer  v.  Piggott,  2  Dowl.  P.  C.  615,  in  whicli  it  was  so  decided. 
Tliat  case,  however,  did  not  require  the  doctrine  now  called  in  question;  and 
in  actually  reported  in  4  Ad.  &  E.  363,  note  d,  without  Ha  being  laid  down. 
We  are  now  required  to  reconsider  it,  and  arc  satisfied  that  it  is  in  that  re- 
8i)<;ct  erroneous.  Tlie  defect  amounts  to  an  irregularity,  of  which  the  opposite 
party  might  take  advantage  by  writ  of  error;  or,  on  application  to  the  court, 
the  writ  of  ca.  «n.  might  be  set  aside;  but  it  is  not  a  mere  nullity."  Sec  also 
Reynolds  r.  Corp,  3  Caines,  271;  Martin  v.  Ridge,  Barnes,  271;  Woodcock  v. 
Bcnnct,  1  Cow.  737;  13  Am.  Dec.  568;  Jackson  v.  Do  Lancy,  13  Johns.  550,  7 
Am.  Dec.  403;  Doe  v.  Dutton,  2  Cart.  312;  52  Am.  Dec.  510;  Boggcas  v.  How- 
ard, 40  Tex.  153. 
Vol.  I. -6 


5  31  ISSUING  THE  ORIGINAL  EXECUTION.  66 

be,  of  CTTfoiTing'  fair  dealing,  and  preventing  trick  and 
chicanery,  wliicli  arc  the  disgrace  of  the  law.  Hence 
the  rule  is,  that  the  party  must  seize  the  earliest  oppor- 
tunity of  suggesting  the  error,  otherwise  it  is  considered 
as  waived."  ^  While  we  believe  it  to  follow,  from  the 
latest  and  best  considered  cases,  that  an  execution  is- 
sued after  a  year  and  a  day  is,  until  set  aside,  valid 
between  the  parties  to  the  writ,  yet  there  are  not  want- 
ing several  American  decisions  maintaining  that  such 
writ  is  so  far  a  nullity  that  the  plaintiff  who  sued  it  out 
can  neither  justify  under  it  nor  acquire  title  through  it." 

§  31.    By  the  Issue  or  Levy  of  Anotlier  Writ. — By 

the  common  law%  the  various  remedies  to  enforce  the 
collection  of  judgments  were  regarded  as  cumulative. 
The  mere  fact  that  a  ca.  sa.  had  issued  was  no  bar  to 
afi.fa.,  nor  was  the  issuing  of  the  latter  any  bar  to 
the  issuing  of  the  former.  The  plaintiff  took  out  as 
many  writs  of  different  kinds  as  he  thought  best,  he 
being  answerable  for  any  abuse  he  might  make  of  his 
process.^  **A  fieri  facias  and  a  capias  ad  satisfaciendum 
may  issue,  at  the  same  time,  against  the  goods  and 
person  of  a  defendant.  So  a  party,  having  sued  out 
one  writ  of  execution,  may,  before  it  is  executed,  aban- 
don that  writ,  and  sue  out  another  of  a  different  sort; 
or  he  may  have  several  writs  of  the  same  sort  running 
at  the  same  time,  in  order  to  take  the  defendant,  or  his 
goods,  in  different  counties."*     But  while  executions  of 

^Bailey   v.  Wagoner,  17  Serg.  &  R.  327. 

«  Waite  V.  Doll)y,  8  Humph.  408;  Hoskins  v.  Helm,  4  Litt.  309;  14  Am. 
Dec.  133;  Weaver  v.  Cryer,  1  Dev.  338. 

*  Primrose  v.  Gibson,  2  Dowl.  &  R.  193;  16  Eng.  Com.  L.  78;  Pontius  w.  Nes- 
bit,  40  Pa.  St.  .309;  Commonwealth  v.  Lelar,  13  Pa.  St.  22;  Davies  v.  Scott,  2 
Miles,  52;  Allison  ?•.  Rheam,  3  Serg.  &  R.  142;  8  Am.  Dec.  644;  McNair  v. 
Puiglaud,  2  Dev.  Eq.  42;  22  Am.  Dec.  728. 

*  TidJ's  Pr.  995;  McNair  v.  Kaglaml,  2  Dev,  Eq.  42;  Hammond  v.  Mather, 
3  Cow.  456;  Code  of  Ala.,  sec.  2843. 


67  ISSUING  THE  ORIGINAL  EXECUTION.  §31 

different  sorts  may  issue  contemporaneously,  and  while 
the  prior  issue  of  one  is  no  obstacle  to  issuing  the  other, 
it  is  equally  clear  that  they  cannot  be  contemporane- 
ously executed/  If  one  execution  is  levied  on  the 
defendant's  property,  and  under  another  his  person  is 
seized,  both  cannot  stand.  In  Pennsylvania,  the  plain- 
tiff, under  such  circumstances,  is  allowed  to  elect  which 
he  will  abandon.^  If,  under  the  English  practice,  the 
fieri  facias  is  le\qed  on  any  property,  though  entirely 
insufficient  to  satisfy  the  execution,  the  ca.  sa.  cannot 
be  served  until  after  the^t.  fa.  is  returned.^  "  Taking 
the  defendant  in  execution,  like  a  levy  upon  sufficient 
goods,  operates  as  a  suspension  of  the  judgment  for  the 
time  being.  But  if  there  be  two  or  more  defendants, 
the  taking  of  one  of  them  in  execution  does  not  sus- 
pend the  plaintiff's  right  to  take  the  others."*  When- 
ever the  judgment  is  suspended,  the  right  to  sue  out 
execution  must  also  be  suspended.  This  suspension  is 
not,  we  think,  so  absolute  as  to  entirely  destroy  the 
power  to  issue  execution.  A/,  fa.  issued  while  the  de- 
fendant is  in  custody  under  a  ca.  sa.,  though  erroneous, 
is  not  void.^     The  taking  out  of  an  elegit  authorized 

>  Miller  v.  Pamell,  G  Taunt.  370;  2  Marsh.  78;  1  Eng.  Com.  L.  C58;  Hodg- 
kin.son  r.  Walley,  '2  Tyrw.  174;  Cutter  v.  Colver,  3  Cow.  30;  McGebe  v.  Haud- 
ley,  5  How.  (Miss.)  629. 

»  Young  V.  Taylor,  2  Binn.  218;  Grant  v.  Potts,  2  Miles,  164. 

»  Hodgkinson  v.  Walley,  1  Tyrw.  174;  2  Cromp.  &  J.  8G;  1  Dowl.  P.  C.  298. 

*  Freeman  '  4  Judgments,  sec.  477,  citing  Fassett  v.  Tallmadge,  15  Abb.  Pr. 
20.5;  Bank  of  Beloit  v.  Beale,  7  Bosw.  Gil;  Penn  r.  Rcmsen,  24  How.  Pr.  503. 
See  also  Sliarpo  v.  Speckenagle,  3  Sorg.  &  II.  4G5;  Bowrell  v.  Zigler,  19  Ohio, 
30G;  Rockhill  v.  Hanna,  15  IIow.  190;  Roger.s  y.  Marshall,  4  Leigh,  432. 

*  Tayloe  v.  Thompson,  5  Pet.  3(59;  Jeaue.s  r.Wilkins,  1  Ves.  Sr.  195.  In  the 
case  last  cited.  Lord  Chaiicollor  Hanlwiuke  said:  "To  avoid  the  sale  and  title 
of  the  defendant,  it  must  be  proved  that  the  Ji. /a.  was  void,  and  conveyed  no 
authdrity  to  tlio  slierifl,  for  it  miglit  be  irregular;  and  yet,  if  sufficient  to  in- 
•lemnify  the  Mherifif  so  that  he  might  justify  in  an  action  of  Irarpdjm,  ho  might 
convey  agoo<l  title,  notwith.standing  the  writ  might  be  afterward  set  aside.  It 
ia  said  tiiat,  by  law,  during  the  cxiateuce  of  the  capivm  and  the  person  in  custody 


§32  ISSUING  THE  ORIGINAL  EXECUTION.  68 

the  seizing  of  a  moiety  of  the  defendant's  lands,  to  be 
held  until  the  profits  of  such  moiety  should  pay  the 
debt.  The  law  presumed  that  this  payment  would  in 
time  be  accomplished,  and  therefore  regarded  the  ex- 
tending of  any  lands  under  an  elegit,  however  trivial 
their  value,  as  a  satisfaction  of  the  judgment,  and  there- 
fore as  a  bar  to  the  right  to  take  out  any  further  exe- 
cution. It  was,  at  an  early  day,  sometimes  contended 
that  the  mere  suing  out  of  an  elegit  precluded  the 
plaintiff  from  afterward  having  any  other  writ.  But 
it  was  afterward  well  settled  that  when,  "under  this 
writ,  execution  can  only  be  had  of  goods,  because  there 
are  no  lands,  and  such  goods  are  insufficient  to  satisfy 
the  debt  {nihil)  being  returned  as  to  the  lands,  a  ca.  sa. 
or  other  writ  may  then  be  had  after  the  elegit,  for  such 
elegit  is,  in  this  case,  no  more  in  effect  than  a  fieri 
acias. 

§  33.  Stay  of  Execution.  —  After  the  commence- 
ment, and  before  the  termination,  of  the  period  pro- 
vided by  law  for  the  issuing  of  execution,  the  plaintiff 

a/,  fa.  ought  not  to  be  taken  out,  and  certainly  it  ought  not;  although,  if  the 
defendant  dies,  the  plaintiff  may  have  a  new  execution,  as  upon  the  statute  21 
Jac.  I.;  yet  while  that  continues,  resort  cannot  be  to  any  other  execution;  and 
the  court,  without  putting  the  party  to  his  audita  qiierela,  would  (as  I  appre- 
hend) set  it  aside  on  motion.  But  yet  that/. /a.  was  not  void,  and  the  sheriff 
might  justify  taking  this  leasehold  by  that  writ;  and  so  may  the  purchaser  un- 
der the  sheriff,  who  gains  a  title;  otherwise  it  would  be  very  hard,  if  it  should 
be  at  the  peril  of  ijurchaser  under  a/,  fa.,  whether  the  proceedings  were  regu- 
lar or  not;  and  the  law  is  the  same,  although  the  /.  /a.  issued  in  a  different 
county  from  that  wherein  the  body  was  taken  into  custody."  But  theye  views 
have  been  repudiated  in  the  case  of  Kennedy  v.  Duncklee,  1  Gray,  70,  where  it 
is  held  that  a/. /a.,  issued  while  defendant  is  in  custody,  is  in  legal  effect 
issued  on  a  satisfied  judgment,  and  that  no  title  can  be  divested  thereby, 
whether  the  purchaser  has  notice  or  not.  This  last  case  is  but  a  rcaffirmauce 
of  the  doctrines  of  the  prior  case  of  King  v.  Goodwin,  16  Mass.  63. 

1  Bingham  on  Judgments  and  Executions,  176;  Foster  v.  Jackson,  Hob.  58; 
Crawley  v.  Lidgeat,  Cro.  Jac.  338;  Lancaster  v.  Fideler,  2  Ld.  Raym.  1451; 
Knowles  v.  Palmer,  Cro.  Eliz.  160;  Beacon  v.  Peck,  1  Strange,  226. 


69  ISSUING  THE  ORIGINAL  EXECUTION.  §32' 

may  be  prevented  from  immediately  reaping  the  fruits 
of  his  judgment,  by  a  stay  of  execution.  This  stay 
may  either  be  granted  by  order  of  the  court,  or  may 
be  created  by  comphance  with  the  provisions  of  some 
statute  under  which  the  plaintiff  is  allowed  to  prose- 
cute proceedings  for  the  reversal  of  the  judgment,  or 
by  which  he  may  temporarily  arrest  its  enforcement  by 
giving  adequate  security  for  its  final  payment.  Each 
court  has  such  general  control  of  its  process  as  enables 
it  to  act  for  the  prevention  of  all  abuse  thereof.^  Hence 
it  may,  to  prevent  the  annoyance  which  might  be  occa- 
sioned by  the  attempted  execution  of  a  void  judgment, 
either  stay  or  arrest  the  process;^  and  may,  where  it  is 
clear  that  the  judgment  ought  not  to  be  further  en- 
forced, order  a  perpetual  stay  of  execution.^  When  an 
appellate  court  has  affirmed  a  judgment  and  remitted 
the  case  to  the  subordinate  court,  the  latter  has  no 
right  to  stay  execution.*  The  power  of  courts  to  tem- 
porarily stay  the  issuing  of  execution  is  exercised  in  an 
almost  infinite  variety  of  circumstances,  in  order  that 
the  ends  of  justice  may  be  accomplished.  In  many 
cases  this  power  operates  almost  as  a  substitute  for  pro- 
ceedings in  equity,  and  enables  the  defendant  to  pre- 
vent any  inequitable  use  of  the  judgment  or  writ.^    Like 

1  Robinson  v.  Yon,  8  Fla.  350;  Sawin  v.  Mt.  Vernon  Bank,  2  R.  I.  382;  Rob- 
inson V.  Chesseldine,  4  Scam.  3.32. 

•^  Sanchez  v.  Carriaga,  31  Cal.  170;  Ketchum  v.  Crippen,  37  Cal.  223;  Mur- 
dock  V.  De  Vries,  37  Cal.  527;  Logan  v.  Hillegass,  16  Cal.  200. 

*  Keeler  v.  King,  1  Barb.  390;  Rutland  v.  Pippin,  7  Ala.  4G9;  Lansing  v. 
Orcott,  16  Johns.  4;  Welsh  v.  Tittsworth,  22  How.  Pr.  475;  Baker  v.  Taylor, 
1  Cow.  165;  Palmer  v.  Hutchins,  1  Cow.  42;  Davis  v.  Tiffany,  1  Hill,  643; 
Harrison  v.  Soles,  6  Pa.  St.  393;  Marsh  v.  Haywood,  6  Humph.  210;  Smith 
V.  Page,  15  Johns.  395;  Monroe  v.  Upton,  50  N.  Y.  593;  Cornell  v.  Dakin,  38 
N.  Y.  253. 

*  Marysville  v.  Buchanan,  3  Cal.  212;  Dibrell  v.  Eastland,  3  Yerg.  507. 

»  Barnes  v.  Carmach,  1  Barb.  390;  Stecre  v.  Stafford,  12  R.  I.  131;  Knox  v. 
Hcxtcr,  10  Jones  &  S.  49G;  Comm.  v.  Magee,  8  Pa.  St.  240;  49  Am.  Dec.  509. 


§32  ISSUING  THE  ORIGINAL  EXECUTION.  70 

most  other  discretionary  powers,  it  is  liable  to  abuse. 
It  is  tlie  general  practice  of  the  losing  party  to  ask  and 
for  the  court  to  grant  a  stay  of  execution  for  some 
designated  period  after  the  entry  of  judgment,  for  no 
other  reason  than  that  he  is  not  yet  ready  to  comply 
with  the  judgment,  or  perhaps  in  view  of  proceedings 
by  appeal  or  for  a  new  trial.  These  stays  generally 
result  in  a  delay,  and  sometimes  in  the  defeat  of  justice; 
and  the  courts  ought  to  be  very  cautious  in  granting 
them,  except  in  cases  where  the  ultimate  satisfaction  of 
the  judgment  by  the  defendant  is  assured.  The  power, 
however,  to  grant  such  stays  of  execution  is  every- 
where conceded,  and  it  could  not  be  limited  by  the  en- 
actment of  any  unvarying  rule  without  encountering 
evils  of  greater  magnitude  than  those  sought  to  be 
supjiressed.  The  exercise  of  this  power  will  some- 
times be  reviewed  by  the  appellate  courts,^  but  never 
"  unless  capriciously  exercised  or  abused."^  In  some  of 
the  states,  stay  laws  are  in  force,  under  which  defend- 
ants, on  giving  security,  may  delay  the  issuing  of 
execution.  These  laws,  and  the  proceedings  necessary 
to  secure  the  benefits  thereof,  are  so  purely  the  result 
of  diverse  local  leofislation  that  we  shall  not  undertake 
to  treat  of  them  in  this  work.  A  party  moving  for  a 
new  trial,  or  prosecuting  an  appeal  from  a  judgment, 
ordinarily  finds  it  necessary  to  obtain  a  stay  of  execu- 
tion. Neither  of  these  proceedings  results  in  such 
stay,^  until  the  undertaking  or  other  security  required 

^  Livermore  v.  Hodgkins,  54  Cal.  637. 

3  Granger  v.  Craig,  85  N.  Y.  619. 

»  Thomas  v.  Nicklas,  58  la.  49;  Eakle  v.  Smith,  24  Md.  339;  Kelbee  v.  My- 
rick,  12  Fla.  41G;  Ex  parte  Floyd,  40  Ala.  116;  Castro  v.  lilies,  22  Tex.  479; 
73  Am.  Dec.  277:  Tucker  t>.  State,  11  Md.  322;  Branigaii  i*.  Rose,  3  Gilm.  123; 
Johnston  v.  Goldsboro,  3  Gilm.  499;  People  v.  Loucks,  28  Cal.  68. 


71  ISSUING  THE  ORIGINAL  EXECUTION.  §32 

by  statute  has  been  given  ;^  but  in  New  York  it  seems 
a  stay  may  be  granted  without  security,  when  it  appears 
that  appellant  is  amply  able  to  respond  to  any  judg- 
ment that  may  be  given.^  At  common  law  no  under- 
taking nor  other  security  was  required.  A  writ  of 
error  ^  or  a  certiorari,*'  from  the  time  of  its  allowance, 
operated  as  a  supersedeas,  and  avoided  all  proceedings 
thereafter  taken,  though  consummated  before  any  notice 
was  given  of  the  allowance  of  the  wiit.  At  the  pres- 
ent time  the  rule  is  otherwise,  both  in  England^  and 
in  the  United  States.^  No  order  will  be  made  staying 
execution  until  security  has  been  given  to  indemnify  the 
party  whose  writ  is  thus  suspended,  for  the  injury 
which  may  be  occasioned  thereby,  unless  perhaps  iii. 
peouhar  cases  in  which  the  court  thinks  proper  to 
stay  proceedings  by  virtue  of  its  common-law  powers/ 
The  circumstances  in  which  execution  of  the  judgment 
may  be  stayed  pending  appellate  proceedings  are  desig- 
nated in  various  statutes,  differing  in  their  details,  but 
resembhng  in  their  general  outhnes.     A  bond  for  the 

»  Fulton  V.  Hanna,  40  Cal.  278;  Ela  v.  Welch,  9  Wis.  35. 

^  Polhamus  v.  Moser,  7  Robt.  443.  In  this  state,  the  courts  in  exercise  of 
their  common-law  powers  may  stay  executions  pending  appeals,  though  no 
bonds  have  been  giren.  Granger  v.  Craig,  85  N.  Y.  619;  Quinlau  ik  Russell,  48 
N.  Y.  Sup.  Ct.  537. 

'  Cleghorn  v.  Desanges,  Gow.  66;  Jacques  v.  Nixon,  1  Term  Rep.  279;  Capron 
V.  Archer,  1  Burr.  340;  Perkins  v.  Wollastin,  Salk.  322;  Thorpe  v.  Beer,  2  Barn. 
&  Aid.  373;  Hawkins  r.  Jones,  5  Taunt.  204. 

*  Gardiner  v.  Murray,  4  Yeates,  560;  Kingsland  ?'.  Gould,  1  Halst.  161; 
Mairs  v.  Sparks,  2  South.  513;  Case  v.  Shepherd,  2  Johns.  Cas.  27;  ^layor  of 
Macon  v.  Shaw,  14  Ga.  162. 

*  Bicknell  r.  LongstaflF,  6  Term  Rep.  455;  Attenbury  v.  Smith,  2  Dowl.  <fe 
R.  85;  Smith  v.  Howard,  2  Dowl.  &  R.  85;  Abraham  v.  Pugh,  5  Barn.  &  Aid. 
903;  Smith  v.  Shepherd,  5  Term  Rep.  9. 

•Stockton  r.  Bishop,  2  How.  74;  Pratt  v.  Stage  Co.,  26  Iowa,  241;  Jack- 
son V.  Schauber,  7  Cow.  417;  Bonnell  v.  Neely,  43  III.  288;  Jouca  v.  M.  &  A. 
E.  R.  Co.,  5  How.  (Miss.)  407. 

'  Granger  v.  Craig,  85  N.  Y.  019;  Quinlan  v.  Russell,  48  N.  Y.  Sup.  Ct.  537. 


§32  ISSUING  THE  ORIGIKAL  EXECnOKm.  72 

payment  of  costs  is  generally  made  indispensable  to 
the  appeal,  and  in  some  contingencies  it  operates  to 
stay  the  proceedings.  When,  however,  the  judgment 
is  for  the  payment  of  money  or  for  the  delivery  or  sale 
of  property,  or  for  any  relief,  the  further  withholding 
of  which  might  occasion  its  loss  or  otherwise  seriously 
prejudice  the  prevailing  party,  a  further  bond  is  gen- 
erally exacted  in  some  sum  designated  by  statute  or 
fixed  by  a  rule  or  order  of  court/  In  order  to  obtain 
the  supersedeas  it  is  well  settled  that  the  law  must 
be  strictl}^  conformed  to  and  every  act  designated  in 
the  statute  must  be  performed  within  the  time,  and 
substantially  in  the  manner  specified  in  the  statute.^ 
The  supersedeas  arising  from  the  allowance  of  a  writ 
of  error  or  of  a  certiorari  may  operate  to  prevent  the 
issue  of  an  execution  or  the  service  of  an  execution 
already  issued.  In  either  event,  it  is  merely  suspensive 
in  its  eifect,  and  cannot  operate  retroactively  to  avoid 
or  annul  proceedings  previously  taken. ^  It  did  not 
abate  a  writ  which  had  already  been  partly  executed. 
Hence,  where  a  levy  had  already  been  made,  it  was 
the  dut}^  of  the  officer  to  proceed  to  sell  the  property.* 
In  the  United  States,  this  rule  of  the  common  law  has 

1  Telegraph  Co.  v.  Eyser,  19  Wall.  419;  Orchard  v.  Hughes,  1  Wall.  73; 
Ringgold's  Case,  1  Bland,  5;  Fitzgerald  v.  Beebe,  7  Ark.  310;  46  Am.  Dec.  285; 
Desty's  Fed.  Proc,  p.  672.  Sometimes  no  bond  is  exacted  where  the  appeal  is 
by  the  jjeople,  or  by  an  officer  who  has  given  an  official  bond:  People  v.  Clin- 
gan,  5  Cal.  389;  Trapnall  v.  Brownlee,  8  Ark.  207. 

^  Kitchen  v.  Randolph,  93  U.  S.  86;  Erie  City  Bank  v.  Compton,  27  Pa.  St. 
195;  The  Roanoke,  3  Blatchf.  390;  Penn.  R.  R.  Co.  v.  Commonwealth,  39  Pa.  St. 
403;  Sage  v.  C.  R.  R.,  93  U.  S.  412;  Tucker  v.  State,  11  Md.  322. 

'  Runyon  v.  Bennett,  4  Dana,  598;  29  Am.  Dec.  431;  Board  of  Comm'rs  v. 
Gorman,  19  Wall.  661. 

*  Charter  v.  Peeter,  Cro.  Eliz.  597;  Meriton  v.  Stevens,  Willis,  271;  Blauch- 
ard  V.  Myers,  9  Johns.  05;  Kinnie  v.  Whitford,  17  Johns.  34;  Patchiu  v.  The 
Mayor,  13  Wend.  664;  Payfer  v.  Bissell,  3  Hill,  239]  Mayor  of  Macou  v.  Shaw, 
14  Ga.  162: 


73  ISSUIXG  THE  ORIGINAL  EXECUTION.  §33 

beeu  very  generally  supplanted  by  statutory  provisions, 
by  virtue  of  which  a  sufficient  undertaking  on  appeal, 
while  it  does  not  usually  destroy  existing  levies  or 
liens,  suspends  all  further  proceedings  until  the  final. 
disposition  of  the  appeal/  A  stay  in  favor  of  one  of 
the  defendants  does  not  suspend  the  right  to  issue 
execution  against  the  others.^  A  motion  to  vacate  a 
judgment,  or  to  quash  an  execution,  does  not  stay  pro- 
ceedings.' Where  a  stay  is  desired,  pending  the  hear- 
ing of  the  motion,  an  order  of  the  court  to  tliat  effect 
should  be  obtained.  A  sujpersedeas  should  be  granted 
by  the  court  having  at  the  time  the  custody  of  the 
record.* 

§  33.  Execution  Issued  Pending  a  Stay. — An  exe- 
cution issued  pending  a  stay  thereof  granted  by  the 
court  or  by  a  statute  is  of  course  irregular,  and  may  be 
cjuashed  on  motion.  But  it  may  happen  that  for  want 
of  such  motion  the  execution  is  never  arrested,  and 
property  is  seized  and  sold  thereunder.  In  such  case, 
as  in  all  other  cases  of  irregular  execution,  the  author- 
ities are  conflicting,  some  asserting  that  the  wni,  hav- 
ing erroneously  issued,  remains  in  force  till  the  error  is 
corrected,''  and  others  maintaining  that  the  court  for 

1  Delafield  v.  Sandford,  3  Cow.  473;  North  Western  Co.  v.  Landes,  6  Minn. 
564.  Ill  Alabama,  the  proceeding  for  a  supersederu'i  is  by  petition.  Shearer  v. 
Boyd,  10  Abi.  281;  Speuce  v.  Walker,  7  Ala.  508;  Powell  v.  Wasliiiurton.  15 
Ala.  803. 

'■'  Slieetz  V.  Huber,  31  Leg.  Int.  28;  6  Leg.  Gaz.  68. 

*  Spang  r.  Coiniiionwealth,  and  Commonwealth  v.  Freedley,  12  Pa.  St.  358; 
Bryan  v.  Berry,  8  Cal.  130. 

*  Payne  v.  Thompson,  48  Ala.  535. 

"  Swigart  V.  Harbor,  4  Scam.  364;  .39  Am.  Dec.  418;  Rheetz  v.  Iluber,  0  Leg. 
Gaz.  08;  31  Leg.  Int.  28;  Oakes  v.  Williams.  107  111.  154;  Shirk  v.  M.  &  N.  C. 
G.  R'y  Co.,  110  III.  001.  Perhaps  a  slierifiF  or  lonstabli!  may  lawfully  refuse  to 
enforce  a  writ  i.ssued  in  contravention  of  a  atay  of  proceedijigs.  Palmer  v 
Galbreath,  74  Ind.  84. 


§34  ISSUING  THE  ORIGINAL  EXECUTION.  74 

the  time  lx>iiig  having  no  ^^owcr  to  issue  the  execu- 
tion, the  writ  is  void.^  In  New  York  the  stay  of  exe- 
cution resailting  from  an  appeal  bond  does  not  terminate 
when  the  judgment  of  the  appellate  court  is  orally  pro- 
nouncetl  and  entered  on  the  minutes.  To  supersede  the 
stay,  there  must  be  a  formal  judgment  entered  by  the 
clerk.  An  execution  issued  before  the  entry  of  this 
formal  judgment,  though  irregular,  will  not  be  vacated 
except  upon  pronrpt  application;  and  if  not  vacated  will 
be  treated  as  valid.^ 

§34.    The  Constitutionality  of  Stay  Laws. — It  is 

well  known  that  a  distinction  has  been  made  by  judges 
and  by  writers  upon  constitutional  law  between  laws 
impairing  the  obligation  of  contracts  and  laws  regulat- 
ino-  the  remedies  by  which  those  contracts  may  be 
enforced.  By  tliis  distinction  the  former  laws  have 
been  avoided  and  the  latter  upheld.  There  is  so  inti- 
mate a  conuection  between  a  right  and  the  means  by 
which  it  may  be  enforced  that  the  justness  of  this  dis- 
tinction may  well  be  doubted;  for  substantially  we 
destroy  a  right  when  we  destroy  the  legal  methods  of 
enforcing  it,  and  we  abridge  or  enlarge  the  right  when 
we  abridge  or  enlarge  those  methods.  The  right  to 
judgment  ought  necessarily  to  be  inseparable  from  the 
right  to  speedy  execution ;  and  hence  all  laws  profess- 
ino-  to  postpone  or  suspend  the  right  to  execution, 
whether  in  regard  to  pre-existing  judgments  or  in  re- 
gard to  judgments  on  pre-existing  contracts,  ought  not 
to  be  enforced  when  their  manifest  tendency  is  to  dimin- 
ish the  plaintiff's  opportunities  for  reaping  the  fruits  of 

1  Milliken  v.  Brown,  10  Serg.  &  R.  188. 

2  Bowman  v.  Tallman,  28  How.  Pr.  483;  3Robt.  633;  2Robt.  632;  Lentilhon 
V.  Mayor,  1  Code  K.,  N.  S.,  111. 


75  ISSUING  THE  ORIGINAL  EXECUTION.  §34 

his  jnclgment.  It  is,  however,  quite  certain  that  some 
altei-ation  may  be  made  in  the  laws  allowing  execution, 
bv  which  the  time  for  their  issue  may  be  somewhat 
postponed,  and  the  chances  of  the  plaintiff's  obtaining 
satisfaction  somewhat  diminished.  No  sufficiently  ex- 
act test  can  be  made  by  which  to  determine  precisely 
what  laws  are  prohibited  and  what  upheld.  The  most 
that  can  be  said  is,  that  no  change  in  the  remedy  will 
be  enforced  w^here  it  amounts  to  a  substantial  denial  of 
the  right.  "It  is  difficult,  perhaps,  to  draw  a  line  that 
would  be  applicable  in  all  cases  between  legitimate 
alterations  of  the  remedy  and  provisions  which  in  the 
form  of  remedy  impair  the  right.  But  it  is  manifest 
that  the  obligation  of  the  contract  and  the  rights  of  a 
party  under  it  may,  in  effect,  be  destroyed  by  denjang 
a  remedy  altogether;  or  may  be  seriously  impaired  by 
burdening  the  proceedings  with  new  conditions  and 
restrictions,  so  as  to  make  the  remedy  hardly  worth 
pursuing.  And  no  one,  we  presume,  would  say  that 
there  is  any  substantial  difference  between  a  retrospec- 
tive law  declaring  a  particular  contract  or  class  of  con- 
tracts to  be  abrocfated  and  void,  and  one  which  took 
away  all  remedy  to  enforce  them,  or  encumbered  it 
with  conditions  that  rendered  it  useless  or  impracti- 
cable to  pursue  it."  ^ 

Laws  regulating  judgments  and  judgment  hens,  to- 
gether with  the  time  and  manner  of  their  enforcement 
by  execution,  are  said  to  affect  the  remedy  merely,^  and 
are  therefore  sometimes  given  a  retrospective  opera- 
tion. This,  however,  is  true  only  of  those  statutory 
changes  in  which  the  prime  object  does  not  appear  to 
be  to  delay  the  judgment  creditor,  or  to  compel  him  to 

•  BroiiHoii  r.  Kinzie,  1  IIow.  317. 

'  liauik  uf  Uuited  Stated  v.  Lougworth,  1  McLean,  35. 


§34  ISSUING  THE  ORIGINAL  EXECUTION.  76 

accept  an  inadequate  satisfaction  of  his  debt.  In  times 
of  great  financial  embarrassment,  the  leglslatuies  of 
several  of  the  states  have  attempted  to  protect  judg- 
ment and  other  debtors  from  a  sacrifice  of  their  prop- 
erty at  forced  sale,  and  have  enacted  laws,  some  of 
which  provided  that  no  execution  should  be  issued  nor 
enforced  within  certain  periods;  and  others  declared 
that  such  execution  could  issue  only  when  plaiirtiif  was 
willing  to  accept  payment  in  bank  notes,  or  other  de- 
preciated currency.  These  statutes,  though  prompted 
by  motives  of  the  most  humane  character,  and  perhaps 
even  sustainable  on  grounds  of  public  policy,  were  lia- 
ble to  the  most  unanswerable  constitutional  objections. 
They  either,  for  months  or  years,  took  from  the  credi- 
tor all  remedy,  or  coerced  him  into  acceptmg  something 
different  from  and  less  valuable  than  that  contemplated 
by  his  original  contract.  They  have  therefore  been 
almost  uniformly  declared  to  possess  no  validity,  on 
the  gix>und  that  in  their  operation  they  necessarily  im- 
paired the  obligation  of  contracts.^    Nor  can  one  cred- 

1  Dormire  v.  Cogly,  8  Blackf.  177;  Strong  v.  Daniel,  5  Ind.  348;  Gentry  v. 
Baily,  1  Mo.  164;  13  Am.  Dec.  484;  Brown  v.  Ward,  1  Mo.  209;  Biungardner 
V.  Circuit  Court,  4  Mo.  50;  Lapsley  v.  Brashears,  4  Litt.  47;  Hudspeth  v.  Davis, 
41  Ala.  389;  Pool  v.  Young,  7  T.  B.  Mon.  588;  Miller  v.  Gibson,  63  N.  C.  635; 
Ex  parte  Pollard  and  Woods,  40  Ala.  77;  Stevens  v.  Andrews,  31  Mo.  205; 
Jacobs  V.  Smallwood,  63  N.  C.  112;  Taylor  v.  Stearns,  18  Gratt.  244;  Garling- 
ton  V.  Priest,  13  Fla.  559;  Crittenden  v.  Jones,  1  Car.  Law  Rep.  385;  6  Am. 
Dec.  531;  States.  Carew,  13  Rich.  506;  91  Am.  Dec.  245;  Jones  r.  McMahan, 
30  Tex.  720;  Coffman  v.  Bank  of  Kentucky,  40  Miss.  30;  90  Am.  Dec.  311; 
Grayson  v.  Lilly,  7  T.  B.  Mon.  10;  Stephenson  v.  Baruett,  7  T.  B.  Mon.  50. 
"  Does  an  act  to  suspend  execution  impair  the  obligation  of  contracts  made  be- 
fore it  ?  What  the  obligation  of  a  contract  is  may  be  discerned  by  consider- 
ing what  it  is  that  makes  the  obligation.  The  contract  alone  has  not  any  legal 
obligation,  and  why  ?  Because  there  is  no  law  to  enforce  it.  The  contract  is 
made  by  the  jjartics,  and  if  sanctioned  by  law,  it  promises  to  enforce  perform- 
ance should  the  party  decline  performance  himself.  The  law  is  the  source  of 
the  obligation,  and  the  extent  of  the  obligation  is  defined  by  the  law  in  use  at 
the  time  the  contract  is  made.  If  this  law  direct  a  specific  execution,  and  a 
subsequent  act  declare  that  there  shall  not  be  a  specific  execution,  the  obliga- 


77  ISSUING  THE  ORIGINAL  EXECUTION.  §34 

itor  be  compelled  to  stay  execution  because  others  are 
willing  to  do  so.  Hence,  an  act  authorizing-  a  court  to 
stay  execution  upon  the  written  assent  of  more  than 
two  thirds  of  the  defendant's  creditors  is  unconstitu- 
tional.^ During  the  late  Civil  War,  statutes  were  en- 
acted in  several  states  fc)r  the  purpose  of  staying 
execution  against  volunteers  in  the  service  of  the 
United  States.  As  the  tendency  of  these  statutes 
was  to  encourage  enlistments,  and  thereby  to  aid  in 

tion  of  the  contract  is  lessened  and  impaired.  If  the  law  in  being  at  the  date 
of  the  contract  give  an  equivalent  in  money,  and  a  subsequent  law  say  the 
equivalent  should  not  be  in  money,  such  act  would  impair  the  obligation  of  the 
contract.  If  the  law  in  being  at  the  date  of  the  contract  give  immediate  exe- 
cution on  the  rendition  of  the  judgment,  a  subsequent  act,  declaring  that  the 
execution  should  not  issue  for  two  years,  would  lessen  or  impair  the  contract 
equally  as  much  in  principle  as  if  it  suspended  execution  forever;  in  which 
latter  case,  the  legal  obligation  of  the  contract  would  be  wholly  extinguished. 
The  legislature  may  alter  remedies;  but  they  must  not,  so  far  as  regards  ante- 
cedent contracts,  be  rendered  less  efficacious  or  more  dilatory  than  those  or- 
dained by  the  law  in  being  when  the  contract  was  made,  if  such  alteration  be 
the  direct  and  special  object  of  the  legislature,  apparent  in  an  act  made  for  the 
purpose.  Though  possibly,  if  such  alteration  were  the  consequence  of  a  gen- 
eral law,  and  merely  incidental  to  it,  which  law  had  not  the  alteration  for  its 
object,  it  might  not  be  subject  to  the  imputation  of  constitutional  repugnance. 
The  legislature  may  regulate  contracts  of  all  sorts,  but  the  regulation  must  be 
before,  not  after,  the  time  when  the  contracts  are  made."  (Townsend  v.  Town- 
send,  1  Peck,  13;  14  Am.  Dec.  722.)  In  treating  a  similar  question,  in  Blair  v. 
Williams,  4  Litt.  46,  the  court  of  appeals  in  Kentucky  said:  "  Does,  then,  the 
act  of  assembly  in  question  impair  that  obligation?  By  the  law  as  it  stood  at 
the  date  of  the  contract,  the  defendants  were  allowed  to  replevy  the  debt  but 
for  three  months  only,  and  the  money,  if  not  then  paid,  was  required  to  be 
made  of  their  estate,  without  further  delay;  but,  by  the  act  in  question,  they 
are  allowed  to  rejjlevy  tiie  debt  for  two  years,  or  enter  into  a  recognizance  for 
the  payment  of  the  money  within  tiiat  time.  And  surely  it  cannot  require 
argument  to  prove  that  the  latter  act  impairs  the  obligation  imposed  by  the 
former  law.  Indee  1,  the  avowed  object  of  the  act  in  question  was  to  relievo 
the  debtor  from  the  obligation  he  w<as  under  to  pay  his  debt  in  the  time  prc- 
Bcrilxjd  ])y  the  former  kw,  and  give  him  further  time  of  payment;  and  accord- 
ing to  any  Henso  of  the  word,  the  act  in  question  must  impair  the  obligation 
imposed  by  tiie  former  law,  and  is  tliereforo  unconstitutional  and  void,  as  it 
relates  to  the  contract  between  the  [jarties  in  this  case,  as  well  as  to  all  con- 
tracts made  prcviou.s  to  the  paa.sa«e  of  the  act. " 
'  Buun  V.  Gorgaa,  41  Pa.  St.  441 


§35  ISSUINC}  THE  ORIGINAL  EXECUTION.  78 

the  preservation  of  the  national  government,  it  was 
perfectly  natural  that  the  courts  should  seek,  if  possi- 
ble, to  sustain  them.  These  statutes  were  generally 
upheld,^  except  where  they  were  held  to  authorize  an 
indefinite  stay  of  execution,^  or  where  the  defendants 
had  agreed  to  waive  the  right  to  such  stay.^  There 
can  be  no  doubt  of  the  validity  of  stay  laws  when  ap- 
plied to  proceedings  upon  contracts  made  after  their 
passage.  In  such  cases,  the  stay  law  does  not  impair 
the  oblisration  of  the  contract ;  but  is  rather  to  bo  re- 
garded  as  part  of  the  considerations  and  conditions 
upon  which  the  contract  was  made,  and  as  becoming  a 
part  of  the  contract  itself* 

§  35.    Death  of  Sole  Plaintiff  or  Defendant.  —  The 

time  within  which  execution  may  ordinarily  be  sued 
out  may  be  affected  by  the  death,  either  of  a  sole  plain- 
tiff or  of  a  sole  defendant.  Upon  the  happening  of 
either  of  these  events,  the  right  to  issue  process  is  sus- 
pended, and  so  remains  until  the  judgment  can  be  re- 
vived by  scire  facias,  or  until  the  proper  representa- 
tives of  the  deceased  can,  in  some  appropriate  manner, 
be  brought  before  the  court,  and  made  parties  to  the 
record.^  The  remedy  by  scire  facias  has  fallen  into 
disuse  in  many  of  the  states,  and  its  place  has  been 

1  McCormick  v.  Rusch,  15  Iowa,  127;  83  Am.  Dec.  401;  Breitenbach  «. 
Bush,  44  Pa.  St.  313;  84  Am.  Dec.  442;  Coxe's  Ex'r  v.  Martin,  44  Pa.  St.  322; 
Johnson  v.  Duncan,  3  Mart.  (La.)  530;  G  Am.  Dec.  675. 

2  Hasbrouck  v.  Shipman,  16  Wis.  296;  Clark  v.  Martin,  3  Grant  Cas.  393; 
49  Pa.  St.  299. 

3  Billmeyer  v.  Evans,  40  Pa.  St.  324;  Lewis  v.  Lewis,  47  Pa.  St.  127. 

*  Barry  v.  Iseman,  14  Rich.  129;  Wardlaw  v.  Buzzard,  15  Rich.  158;  94 
Am.  Dec.  148;  Burns  v.  Crawford,  34  Mo.  330;  Donnell  v.  Stephens,  35  Mo. 
441. 

s  Huberts.  Wniiams,  Walk.  Ch.  175;  Wilson  v.  Kirkland,  Walk.  Ch.  155; 
Davis  V.  Helm,  3  Smedes  &  M.  17;  McMahon  v.  Glasscock,  5  Yerg.  304;  MtUer 
V.  Doan,  19  Mo.  G50;  Swearingen  v.  Eberius,  7  Mo.  421;  38  Am.  Dec.  463. 


79  ISSUING  THE  ORIGINAL  EXECUTION.  §35 

taken  by  some  remedy  provided  by  statute.  Thus  in 
Indiana,  when  the  defendant  dies  subsequent  to  judg- 
ment, the  rio-lit  to  take  out  execution  seems  to  be  sus- 
pended  thereb}-,  until  one  year  after  tlie  granting  of 
letters  of  administration  on  his  estate.  His  heirs  may 
then  be  summoned  to  show  cause  why  the  judgment 
should  not  be  enforced  ao^ainst  his  estate  in  their  hands. 
They  may  appear  in  response  to  the  summons,  and 
issues  may  be  made  up  and  tried.  If  tlie  issues  are 
determined  in  favor  of  the  creditor,  a  judgment  is  en- 
tered directing  that  the  money  be  made  out  of  the 
assets  in  the  hands  of  the  administrator,  and,  if  they 
prove  insufficient,  then  out  of  the  lands  of  the  decedent.^ 
If  the  judgment  is  not  an  ordinary  money  judgment, 
but  one  directing^  the  sale  of  lands,  the  death  of  the 
defendant  does  not  render  necessary  any  proceedings 
by  way  of  revivor.  This  is  because  the  judgment  oper- 
ates in  rem,  and  binds  all  persons  acquiring  any  inter- 
est in  the  property  from  or  under  the  defendants.^  The 
statutory  proceeding  to  revive  a  judgment  against  a 
decedent  must  not  be  confounded  with  the  proceeding 
to  obtain  execution  on  a  judgment  dormant  through 
lapse  of  time,  for  an  execution  issued  as  the  result  of 
the  last-named  proceeding  will  be  entirely  abortive  in 
its  effect  against  the  heirs  of  the  decedent.^  In  Ilh- 
nois,  if  the  defendant  die  after  judgment,  execution 
may  issue  against  his  lands  and  tenements,  after  three 
months'  notice  in  writini;  has  been  friven  to  his  exec- 
utor  or  administrator  of  the  existence  of  the  judgment; 

'  Faulkner  v.  Larrabee,  70  Iiul.  154;  Graivea  v.  Skeola,  G  Ind.  107.  Similar 
proceeilingd  aro  requirdl  in  some  of  the  other  states.  Wallace  v.  Swintou,  G4 
N.  Y.  11).');   Eitou  r.  Young,  41  Wia.  507. 

'K(-lli)g,'  V.  Tout,  (>')  hid.  151;  Haya  v.  Thomas,  50  N.  Y.  521;  IXarrison  v. 
Siraoat,  .1  E.lw.  Ch.  .394. 

•  Wallace  r.  Sw^utoa,  04  N.  Y.  195;  Faulkuur  v.  Larrabee,  70  luJ.  154. 


§na  ISSUING  THE  ORIGINAL  EXECUTION.  80 

but  if  there  be  no  executor  or  administrator,  the  judg- 
ment must  first  be  revived  by  scire  facias}  But  it 
nuist  be  remembered  that,  under  the  Enghsli  practice, 
the  teste  of  the  execution  and  the  actual  date  of  its 
issuing  were  often  different.  Upon  the  entry  of  judg- 
ment in  au}^  part  of  the  term,  or  during  vacation,  an 
execution  could  issue  tested  the  first  day  of  the  term. 
The  execution  was  treated  as  if  actually  issued  on  the 
day  of  its  teste;  and  the  death  of  the  plaintiff  or  defend- 
ant, subsequently  to  the  teste,  had  no  other  effect  be- 
yond what  it  would  have  had  if  occurring  subsequently 
to  the  actual  issuinof  of  the  writ.^  When  the  term  at 
which  judgment  was  entered  had  entirely  passed,  the 
right  to  teste  executions  as  of  that  term  ended.  Hence, 
if  defendant  died  subsequently  to  the  lapse  of  the  term, 
or  if  dying  during  the  term  no  execution  was  sued  out 
ao-ainst  him  until  the  succeedincf  term,  a  revivor  of  the 
judgment  by  scire  facias  became  necessary  to  entitle 
plaintiff  to  sue  out  execution.^  If,  however,  the  teste  of 
the  writ  where  it  is  issued  under  the  English  practice, 
or  the  actual  date  of  its  issue  where  the  fiction  of  the 
English  law  is  not  enforced,  be  subsequent  to  the  death 
of  a  sole  plaintiff,  in  whose  name  it  issues,  then  there 
can   be  no  doubt  that  the  writ  is  irregular.     By  the 

1  Coran  v.  Pettinger,  92  111.  241. 

2  Cleve  V.  Veer,  Cro.  Car.  459;  Bragner  v.  Langmcad,  7  Term  Rep.  20,  ex- 
plaining and  modifying  Heapy  v.  Parris,  6  Term  Rep.  308;  Collingsworth  v. 
Horn,  4  Stew.  &  P.  240;  24  Am.  Dec.  753;  Center  v.  Bellingluust,  1  Cow.  34;  Fox 
V.  Lamar,  2  Brev.  417;  Robinson  v.  Tongue,  3  P.  Wms.  398;  Preston  r.  Sur- 
goine,  Peck,  81;  Battle  v.  Bering,  7  Yerg.  531;  27  Am.  Dec.  526;  Waghorne  v. 
Langmead,  1  Bos.  &  P.  571;  Nichols  v.  Chapman,  9  Wend.  452;  Hay  v.  Fow- 
ler, 1  How.  Pr.  127;  Black  v.  Planters'  Bank,  4  Humph.  3G7;  Day  v.  Rice,  19 
Wend.  644;  Den  v.  Hillman,  2  Halst.  180;  Davis  v.  Holm,  3  Smcdes  &  M.  34; 
Montgomery  v.  Pwealhafer,  85  Teun.  GG8. 

3  Cooper  r.  May,  1  Harr.  18;  Dibble  v.  Taylor,  2  Spcers,  308;  42  Am.  Dec. 
368;  Davis  r.  Oswalt,  18  Ark.  414;  68  Am.  Dec.  182;  Collingsworth  v.  Horn,  4 
Slew.  &  P.  237;  24  Am.  Dec.  753. 


81  ISSUING  THE  ORIGIXAL  EXECUTION.  §35 

common  law,  however,  the  court  still  has  power  to 
award  execution  upon  the  revival  of  the  judgment  by 
scire  facias.  The  power  of  the  court  seems  to  be  as 
ample,  and  to  be  properl}'-  invoked  in  the  same  manner, 
as  when  judgment  becomes  dormant  for  want  of  execu- 
tion within  a  year  and  a  clay.  If  an  execution  issued 
without  scire  facias  is  not  void  in  the  latter  case,  it 
ought,  upon  principles  equally  applicable  to  both,  to  be 
upheld  in  the  former  case.  This  view  has  been  ac- 
cepted by  some  judicial  tribunals,  and  has  led  to  the 
declaration  that  an  execution  in  the  name  of  a  deceased 
plaintiff,  though  voidable,  is  not  voicL^  But,  on  the 
other  hand,  it  has  been  maintained  that,  by  the  death 
of  the  plaintiff,  the  judgment  also  dies,  subject,  how- 
ever, to  resurrection  b}'  scire  facias,  and  that  until  so 
resurrected  "its  life  is  suspended,  and  the  authority 
which  it  gave  to  issue  execution  for  the  time  being 
withdrawn,  and  the  judgment  stands  as  if  it  never  had 
been  rendered.""  In  Wisconsin,  by  statute,  execution 
after  the  death  of  plaintiff  may  issue  in  the  same  man- 
ner and  with  the  same  effect  as  thoui{h  he  were  still 
living ;'  and  in  some  other  states  the  death  of  a  sole 
plaintiff  does  not  render  a  scire  facias  necessary.*     The 

»  Day  r.  Sharp,  4  Whart.  341 ;  34  Am.  Dec.  509;  Mairty  v.  Eastridge,  G7  Ind. 
211;  Hughes  v.  Willtiuson,  'M  Miaa.  491;  Darlington  v.  Speakman,  9  Watts  & 
S.  182. 

^Stewart  V.  Nuckolls,  15  Ala.  231;  fiOAm.  Dec.  127:  Graham  r.  Chan.lk'r.  15 
Ala.  34.'j;  Browu  r.  Parker,  15  111.  .309;  Tickett  v.  llartsock,  15  111.  279;  I^ill'm 
r.  Hcrrington,  IG  111.  302;  Meyer  v.  Mintonye,  100  111.  414;  Morgan  v.  Taylor, 
38  N.  J.  L.  317. 

»  Holmc<!  V.  Mclndoo,  20  Wis.  007. 

*  In  Kentucky,  &■*  .noon  as  .an  administrator  or  executor  of  deceased  plaintiff 
ia  appoint>;d,  the  clerk  may  iitHue  execution,  innking  indorsement  showing  the 
change  in  the  parties.  Morgan  r.  Wiim,  17  B.  Mon.  24-4;  Venahlo  t».  Smith, 
1  Duvall,  195.  In  New  York,  "prior  to  l.%0,  if  a  plaintiff  died  after  judgment 
in  his  favor  and  ht-'foro  execution  iHHUed,  no  execution  issued  tipon  the  apijlica- 
tioa  of  hilt  pcrHonal  reprcseutativcs,  and  the  remedy  waa  uut  by  execution,  but 
Vol.  L-fl 


§36  ISSUING  THE  ORIGINAL  EXECUTION.  82 

issuing;  of  oxecutions  ao^ainst  solo  defendants,  bearing: 
date  after  their  death,  has  also  given  rise  to  diverse  de- 
cisions ;  l)iit  upon  this  point  the  authorities  are  much 
more  unevenly  divided  than  upon  that  arising  where 
execution  has  issued  after  the  death  of  a  sole  plaintiff. 
Some  of  the  authorities  deny  that  the  death  of  the 
defendant  is  an  extinguishment  of  the  power  to  issue 
execution;  and  affirm  that  a  writ  thereafter  issued, 
without  revivor  of  the  judgment,  though  voidable,  is 
not  void.^  These  authorities,  while  sustainable  on 
principle,  are  borne  down  by  the  weight  of  opposing 

authority." 

• 

§  36.  Issue  after  Death  of  One  of  Several  Plaintiffs 
or  Defendants.  —  We  shall  next  consider  the  effect  of 

by  an  action  in  the  nature  of  scire  facias,  under  section  428  of  the  code.  See 
Ireland  r.  Litchfield,  22  How.  Pr.  178;  8  Bosw.  6.S4;  Jay?'.  Martin,  2  Duer, 
G.j-i;  Wheeler  v.  Dakin.  12  How.  Pr.  537;  Bellinger  v.  Ford,  21  Barb.  311; 
Thurston  v.  King,  1  Abb.  Pr.  12G;  Nims  v.  Sabine,  44  How.  Pr.  252.  But 
since  the  amendment  of  section  283  of  the  code  in  1866,  the  personal  repre- 
sentatives of  a  deceased  judgment  creditor  have  all  the  rights  and  remedies  by 
execution  which  the  creditor  had  while  living."  4  Wait's  Pr.  7  f.  See  also 
Code  of  Ala.,  sec.  2834;  Hurd's  111.  Dig.  G26,  sec.  37;  Iowa  Code,  sec.  3130; 
Wagner's  Stat.  'Mo.  791;  Gaston  v.  White,  46  Mo.  486;  Fowler  v.  Burdett,  20 
Tex.  34;  Thompson  v.  Ross,  26  Miss.  198;  Landes  v.  Perkins,  12  Mo.  238;  Rooks 
V.  Williams,  13  La.  Ann.  374;  Trail  v.  Snoufifer,  6  Md.  308;  Darlington  v.  Speak- 
man,  9  Watts  &  S.  182. 

»  Drake  v.  Collins,  5  How..  (Miss.)  256;  Shelton  v.  Hamilton,  23  Miss.  497; 
57  Am.  Dec.  149;  Hodge  v.  Mitchell,  27  Miss.  564;  61  Am.  Dec.  524;  Hughes  r. 
Wilkinson,  37  Miss.  491;  Wight  v.  Wallbaum,  39  111.  554;  Elliott  u.  Knott,  14 
Md.  121;  74  Am.  Dec.  519;  Butler  v.  Haynes,  3  N.  H.  21;  Speer  v.  Sample,  4 
Watts,  367;  Harrington  v.  O'Reilly,  9  Smedes  &  M.  216;  48  Am.  Dec.  704. 

■^  Massie's  Heirs  v.  Long,  2  Ohio.  288;  15  Am.  Dec.  547;  Samlael  /;.  Zachery,  4 
Ired.  377;  Cartney  v.  Reed,  5  Oliio,  221;  Houston  v.  Childers,  24  La.  Ann.  472; 
Beach  v.  Dennis,  47  Ala.  262;  Lucas  r.  Price,  4  Ala.  679;  Collier  v.  Windham, 
27  Ala.  291;  62  Am.  Dec.  767;  Whittock's  Adm'r  r.  Whittock's  Creditors,  25 
Al.i.  543;  Gwyun  v.  Latimer,  4  Yerg.  22;  Erwin's  Lessee  v.  Dundas,  4  How.  58; 
Mitchell  r.  St.  Maxent,  4  Wall.  237;  Whitehead  v.  Cummins,  2  Cart.  58;  State 
V.  Micliaels,  8  Blackf.  436;  Hildreth  v.  Thomp.son,  16  Mass.  191;  Pickett  v. 
Hartaock,  15  111.  279;  Wallace  v.  Swiaton,  64  N.  Y.  188;  Meyer  v.  Hearst,  75 
Ala.  390;  Smith  r.  Reed,  52  Cal.  345;  Cunningham,  v.  Burk,  45  Ark.  267; 
Williams  v.  ^Veaver,  94  N.  C.  134^ 


S3  ISSUIXCr  THE  ORIGINAL  EXECUTIOX.  §36 

the  death  of  one  of  several  defendants,  or  of  one  of 
several  plaintiffs,  after  judgment,  and  before  the  date 
at  which  the  execution  is  issued  or  tested.  Where 
counsel  insisted  that  "where  there  are  two  or  more 
judgment  creditors,  and  before  execution  issues  one  of 
them  dies,  the  survivors  are  put  to  their  scire  facias 
before  they  can  liave  execution  upon  their  judgment," 
the  court  replied  that  "no  authority  has  been  produced 
in  support  of  this  principle,  but,  on  the  contrary,  the 
course  of  the  books  shows  that  the  proper  mode  of 
proceeding  in  such  case  would  be  to  take  out  the  exe- 
cution conformed  to  the  judgment,  in  the  name  of  all 
tlie  creditors,  without  regarding  the  death  of  any  one." 
Probably,  however,  in  a  case  like  the  present,  on  sugges- 
tion made  to  the  court  of  the  death  of  one  of  the  cred- 
itors in  a  judgment,  where  the  interest  survived  after 
judgment  and  before  the  issuing  of  an  execution,  the 
execution  woidd  be  ordered  to  issue  in  the  name  of  the 
survivor  only.^  A  judgment  recovered  in  favor  of  two 
or  more  persons  would,  on  the  death  of  one  or  more, 
become  vested  in  the  survivor  or  survivors,'^  who  would 
be  entitled  to  issue  execution  or  to  maintain  an  action 
on  the  judgment.  The  death  of  part  of  the  plaintiffs 
introduces  no  new  parties  to  the  record,  and  therefore 
creates  no  necessity  for  a  revivor  by  scire  facias.  The 
general  rule  in  regard  to  revivor  is,  that  it  is  indispen- 
sable whenever  a  new  jiarty  is  to  be  charged  or  benefited 
]jy  the  judgment.  "Where  any  new  person  is  either 
to  be  better  or  worse  by  the  execution,  there  must  be 
a  scire  facias,  because  he  is  a  stranger,  to  make  him 

*  Hamilton  r.  Lyman,  9  Mass.  18;  IJowdoin  v.  Jtmlan,  9  Mass.  KJO;  Cush- 
man  r.  Caryx-nter,  S  C'lish.  36S;  Withers  v.  Harris,  Ld.  lUyiii.  808;  Howell  r. 
Eldnd^je.  '^1  Wen.l.  078. 

*  Freeman  on  Cotenancy  and  Partition,  sec.  302. 


§  36  ISSUING  THE  ORIGINAL  EXECUTION.  84 

party  to  the  judgment,  as  in  case  of  executor  and  ad- 
ministrator; otherwise  where  the  execution  is  neither 
to  charge  nor  benefit  any  new  party,  as  is  this  case, 
where  there  is  a  survivorship;  for  there  is  no  reason 
why  death  should  make  the  condition  of  tlie  survivors 
better  than  before."^ 

When  one  of  several  judgment  defendants  dies,  sat- 
isfaction may  be  sought  solely  by  seizing  the  persons 
or  levying  on  the  personal  estate  of  the  survivors,  in 
which  cases  no  scire  facias  is  needful  to  authorize  the 
issue  of  execution.^  But  it  is  otherwise  if  the  heir 
of  the  deceased  is  to  be  pursued.^  In  order  that  the 
execution  ma}''  conform  to  the  judgment,  it  issues 
against  all  the  defendants,  although  it,  for  all  prac- 
tical purposes,  amounts  to  no  more  than  an  execution 
against  the  survivors.  Under  the  common-law  system 
of  procedure,  a  certain  kind  of  writs  issued  against  the 
persons  of  the  defendants,  another  kind  against  the 
personal  estate  of  defendants,  and  still  another  kind 
was  necessary  to  authorize  satisfaction  to  be  made  out 
of  their  real  estate.  The  two  former,  being  personal 
in  their  nature,  could  issue  after  the  death  of  one  of 
the  defendants  without  any  revivor.  But  w^ith  the 
latter  the  rule  was  otherwise.     If  an  elegit  issued,  it 

1  Pennoir  v.  Brace,  1  Salk.  319;  S.  C,  Penoyer  v.  Brace,  Ld.  Rayin.  244; 
Mitchell  V.  Smith,  1  Litt.  243;  Johnston  v.  Lynch,  3  Bibb,  337. 

-  Day  ?,'.  Rice,  19  Wend.  644;  Cheatham  v.  Brien,  3  Head,  553;  Carahan  v. 
Brown,  6  Blackf.  93;  .Johnston  v.  Lynch,  3  Bibb,  334;  Wade  v.  Natt,  41  Miss, 
248;  Howell  v.  Eldridge,  21  Wend.  678;  Thompson  v.  Bundurant,  15  Ala.  346; 
50  Am.  Dec.  136;  Payne  v.  Payne,  8  B.  Mon.  392;  Martin  i\  Branch  Bank,  15 
Ala.  5S7;  50  Am.  Dec.  147;  Hildreth  v.  Thompson,  16  ^Nlass.  193,  note;  Dick- 
inson V.  Bowers,  7  Baxt.  .307;  Fal:)el  v.  Boykin,  55  Ala.  383;  Reed  v.  Garfield, 
15  111.  App.  290;  Holt  v.  Lynch,  18  W.  Va.  5G7. 

2  Thus  in  Pennoir  v.  Brace,  1  Salk.  319,  "  Holt,  C.  J.,  held  that  a  capias  or 
fi.  fa.,  being  in  the  personalty,  might  survive,  and  might  be  sued  against  the 
survivors  without  a  adrcfacioji;  otherwise  of  an  elegit,  for  there  the  heir  is  to 
be  contributory."    Blanks  v.  Rector,  24  Ark.  496;  89  Am.  Dec.  780. 


85  ISSUING  THE  ORIGINAL^XfteUTION. 


§36 


must  have  been  against  both  the  defendants,  to  be 
executed  on  the  lands  of  both.  Each  defendant  had 
the  right  to  insist  that  one  half  of  the  land  of  his 
co-defendant  be  extended,  in  order  that  the  burden 
might  be  lighter  on  him.  "  But  if  one  defendant  died 
before  execution  issued,  the  lands  descended  and  the 
title  vested  in  tlie  heir.  He  had  the  rio-ht  to  show 
cause  (as  he  had  never  had  a  day  in  court)  why  the 
judgment  was  not  a  charge  on  bis  land,  and  therefore  a 
notice  or  scire  facias  must  issue  to  him  before  his  lands 
could  be  taken  in  execution.  The  lands  of  the  surviv- 
ing defendant  being  chargeable  jointly  with  the  lands 
of  the  deceased  defendant,  and  he  having  the  right  to 
insist  that  tliis  charge  should  be  equally  divided  between 
them,  the  plaintiff  in  execution  could  not  extend  his 
land  without  a  sci.  fa.  If,  therefore,  the  goods  of  the 
survivor  were  not  sufficient  to  satisfy  the  debt,  the 
plaintiff  could  not  proceed  by  his  vfv'ii  oi  elegit ;  neither 
against  the  heir  of  the  deceased  defendant,  because  he 
was  entitled  to  have  a  day  in  court;  or  against  the 
surviving  defendant,  because  he  had  the  right  to  show 
that  the  land,  descended  to  the  heir  of  his  co-defendant, 
was  jointly  liable,  with  his  own,  to  pay  and  satisfy  the 
charge.  Hence  arose  tlie  necessity  of  a  sci.  fa.  against 
the  surviving  defendant,  before  his  lands  could  be  taken 
in  execution."^  In  the  United  States,  the  elegit  has 
fallen  into  disuse,  even  in  those  states  where  it  was 
once  employed. 

An  execution  against  two  or  more  defendants  may 
be  levied  upon  tlie  real  as  well  as  upon  the  personal 
estate  of  either;  and  there  is  no  provision  of  law  under 
which  a  defendant  can  compel  an  execution  to  be  levied 

'  Martin  v.  Branch  Bank,  15  Ala.  694;  50  Am.  Dec.  147. 


§3G  ISSUING  THE  ORIGINAL  EXECUTION.  8G 

on  the  real  estate  of  his  co-defendant  as  well  as  upon 
his  own.  But  in  some  cases  the  difference  between 
the  manner  in  which  real  estate  is  subjected  to  execu- 
tion under  our  statutes  from  that  under  which  it  was 
so  subjected  under  the  Enghsh  statute  has  been  over- 
looked; and  it  has  therefore  been  held  that  an  execu- 
tion cannot  be  levied  on  the  real  estate  of  the  surviving 
defendant  until  there  has  been  a  scire  facias  against 
the  heirs  of  the  deceased  co-defendant;  and  that  if  so 
levied,  the  levy  and  sale  are  unauthorized  and  void.^ 
But  we  think  that  the  reasoning  of  Judge  Dargan,  in 
pronouncing  the  opinion  of  the  supreme  court  of  Ala- 
bama, sufficient!}''  demonstrates  that  these  cases  ought 
not  to  be  followed.  He  said:  "Under  our  statutes, 
judgments  are  joint  and  several,  and  executions  may 
be  levied  on  the  lands  of  one  of  the  defendants  alone 
without  any  levy  on  the  lands  of  the  other,  as  at  the 
common  law  they  could  be  levied  on  the  goods  of  one 
alone,  notwithstanding  the  other  had  goods  liable  to 
execution.  The  decisions,  therefore,  of  the  English 
courts,  under  their  statute,  ought  not  to  be  adopted 
here,  as  ours  is  entirely  different  in  its  legal  conse- 
quences, and  places  lands  on  the  same  footing  with 
personal  property  in  reference  to  the  payment  of  judg- 
ments; that  is,  they  may  be  absolutely  sold  under  the 
same  process,  and  a  perfect  title  passed  to  the  pur- 
chaser; and  the  land  of  one  may  be  sold,  though  no 
levy  is  made  on  that  of  the  other.  It  thus  being 
the  right  of  plaintiff  to  sell  the  land  of  one,  without 
reference  to  the  other,  as  at  common  law  he  could  sell 
the  goods  of  one  without  making  any  levy  on  the  goods 
of  the  other,  I  cannot  myself  see  any  reason  for  a  sci 

1  Woodcock  V.  Bennet.  1  Cow.  738;  13  Am.  Dec.  5G8;  Erwiu's  Leasee  v. 
Dundas,  4  How.  77;  Banks  v.  Rector,  24  Ark.  496. 


87  ISSUING  THE  ORIGDTAL  EXECUTION.  §37 

fa.  against  a  surviving  defendant,  for  it  would  answer 
no  purpose,  and  would  not  benefit  him.  The  question 
here  raised  has  never  before  been  made  in  this  court,  • 
and  we  feel  bound  to  decide  it. upon  our  own  statutes; 
and  we  believe  that  a  just  construction  of  them  war- 
rants us  in  saying  that  the  lands  of  a  survivor  may  be 
sold  under  execution  issued  after  the  death  of  a  co- 
defendant,  without  a  scire  facias"^ 

§  37.    Abatement  of  Writ  by  Death  of  a  Party.  — 

We  have  already  stated  that  the  death  of  a  plaintiff, 
or  of  a  defendant,  subsequently  to  the  teste  of  an  exe- 
cution, had  no  other  effect  than  if  such  death  had 
occurred  subsequently  to  the  actual  issuing  of  the  writ. 
We  shall  now  consider  whether  the  death  of  a  plaintiff 
or  defendant  had  any  effect  on  an  execution  previously 
issued,  and  if  so,  in  what  cases  and  to  what  extent. 
The  common-law  rule,  in  the  event  of  the  death  of  a 
plaintiff,  as  thus  ex[)ressed  and  explained  in  an  early 
case,  is  sustained  by  all  the  authorities:  "There  is  a 
difference  betwixt  a  judicial  writ  after  judgment,  to  do 
execution,  and  a  writ  original;  for  the  writ  judicial,  to 
make  execution,  shall  not  aljate,  nor  is  abatable,  by 
the  death  of  him  who  sues  it;  as  it  is  the  common 
course  of  a  capias  ad  satisfaciendum,  or  a  fieri  facias, 
upon  judgment  issucth,  the  sheriff  shall  execute  it, 
although  the  party  who  sued  it  died  before  the  return 
of  the  writ;  and  although  the  death  be  before  or  after 
execution,  if  it  be  after  the  teste  of  the  writ,  it  is  well 
enough;  as  where  a  capias  ad  satisfacicndnm  is  sued, 
and  the  party  taken,  before  or  after  the  death  of  him 
who  sued  it,  and  before  the  day  of  return;  or  if  a  fieri 

'Martin  r.  Branch  Bank,  1.")  Al.i.  r,'M:  M  Am.   Doo.   147;  llardiu  r.  Mc- 
Cause,  o.i  Mo.  UGj;  Wade  r.  Watt,  41  Miaa.  iJ48. 


§37  ISSUING  THE  ORIGINAL  EXECUTION.  88 

facias  be  awarded,  and  the  money  levied  by  the  sheriff, 
and  the  plaintiff  dies  before  the  return  day  of  the  writ, 
yet  the  executor,  or  his  administrator,  shall  have  the 
benefit,  and  is  to  have  the  money;  and  it  is  no  return 
to  say  that  the  plaintiff  is  dead;  and  therefore  that  he 
did  not  execute  it."^  When  a  writ  is  once  sued  out 
against  the  personal  property  of  the  defendant,  the 
slieriff  need  not,  and  in  fact  cannot,  take  any  notice  of 
the  subsequent  death  of  the  defendant.  From  its  teste 
at  common  law,  and  from  its  delivery  to  the  officer 
under  statutes  where  tlie  common-law  fiction  of  rela- 
tion to  the  day  of  teste  has  been  abolished,  the  writ  is 
deemed  to  be  in  process  of  execution;  and  when  its 
execution  is  commenced  during  the  life  of  defendant, 
either  in  fact  or  in  contemplation  of  law,  it  must  pro- 
ceed. The  officer  may  therefore  seize  the  chattels  of 
the  defendant,  though  they  have  come  into  tlie  posses- 
sion of  his  executor  or  administrator.^  With  respect 
to  the  real  estate  of  the  defendant,  the  rule,  according 
to  a  decided  preponderance  of  the  authorities,  is  the 

^  Massie's  Heirs  v.  Long,  2  Ohio,  287;  15  Am.  Dec.  547;  Wing  v.  Hussey,  71 
Me.  186;  Becker  v.  Becker,  47  Barb.  498;  Fox  v.  Lamar,  2  Brev.  417;  Cleve 
V.  Veer,  Cro.  Car.  459;  Ellis  v.  Griffith^  16  Mees.  &  W.  106;  4  Dowl.  &  L.  279; 
10  Jur.  1014;  16  L.  J.  Ex.  66;  Gregory  v.  Chadwell,  3  Cold.  390;  Clerk  v. 
Withers,  6  Mod.  290;  11  Mod.  3o;  Brayner  i>.  Langmead,  7  Term  Rep.  20; 
Neil  V.  Gaul,  1  Cold.  396;  Murray  v.  Buchanan,  7  Blackf.  549;  Clere  v. 
Withers,  Ld.  Raym.  1073;  Thoroughgood's  Case,  Noy,  73;  Commonwealth  v. 
Whitney,  10  Pick.  434;  Buckner  v.  Terrill,  Litt.  Sel.  Cas.  29;  12  Am.  Dec. 
269;  Gaston  v.  White,  46  Mo.  486;  Bigelow  v.  Renker,  25  Ohio  St.  542.  But 
in  Kentucky,  the  writ  abates  unless  levied  or  replevied  in  plaintiff's  lifetime. 
Wagnonr.  McCoy,  2  Bibb,  198;  Huey  v.  Ridden,  3  Daua,  488;  Bristow  v.  Pay- 
ton's  Adm'r,  2  T.  B.  Mon.  91;  15  Am.  Dec.  134. 

2  Parker  v.  Mosse,  Cro.  Eliz.  181;  Parsons  v.  Gill,  Ld.  Raym.  695;  Eaton  v. 
Southby,  Willes,  131;  Waghorne  r.  Langmead,  1  Bos.  &  P.  571;  Huey  v.  Red- 
den, 3  Dana,  488;  Grosvenor  v.  Gold,  9  Mass.  214;  Ncedham's  Case,  12  Jilod.  5; 
Thompson  v.  Ross,  26  Miss.  200;  Odes  v.  Woodward,  Ld.  Raym.  850;  Dodger. 
Mack,  22  111.  95;  Logsdon  v.  Spivey,  54  111.  104;  Craig  v.  Fox,  16  Ohio,  563; 
Arnold  v.  Fuller,  1  Ohio,  458. 


89  ISSUING  THE  ORIGINAL  EXECUTIOX.  §37 

same  as  that  applicable  to  his  personal  estate.  An 
elegit  bearing  teste  in  the  defendant's  lifetime  may, 
after  his  death,  be  extended  on  his  real  estate,  and  the 
same  is  true  of  any  other  writ,  so  tested,  which  may  be 
employed  to  make  real  estate  answerable  for  the  defend- 
ant's debt/  In  Kentucky,  the  death  of  a  defendant  at 
any  time  before  sale  abates  the  execution  both  as  to 
real  and  to  personal  estate;  but  this  result  was  not 
attained  in  that  state  through  any  peculiar  interpreta- 
tion of  the  common  law.  It  was  owing  to  a  construc- 
tion given  a  local  statute.^  In  New  York,  it  has  been 
held  that  the  real  estate  of  the  defendant  cannot  be 
sold  under  an  execution  tested  before,  but  issued  after, 
his  death. ^  As  this  decision  is  not  supported  b}^  any 
local  statute,  it  must  be  conceded  to  be  contrary  to  a 
strong  and  overpowering  current  of  authorities.  But 
when  execution  has  in  fact  issued,  and  the  sheriff  has 
taken  steps  for  its  enforcement,  it  is  settled,  even  in 
New  York,  that  the  death  of  the  defendant  cannot 
arrest  the  process.^  In  Texas,  executions  seem  to 
abate  on  the  death  of  the  defendant,  whether  levied  or 
not,  and  to  Ijc  thereafter  regarded  as  absolutely  void.'' 

1  Tidd's  Pr.  1034;  Sprott  v.  Reid,  3  G.  Greene,  492;  5G  Am.  Dec.  549;  Doe 
V.  Heath,  7  Blackf.  loG;  Erwins  Lessee  v.  Dundas,  4  How.  7G;  Bleecker 
t'.  Bond,  4  Wash.  C.  C.  6;  Doe  v.  Hayes,  4  Ind.  117;  Hanson  v.  Barnes,  3  Gill 
&  .J.  359;  22  Am.  Dec.  322;  Jones  r.  Jones,  1  Bland,  443;  18  Am.  Dec.  327; 
Mundy  r.  Bryan,  18  Mo.  29;  Dew  r.  Hillman,  2  Halst.  ISO;  Aycock  v.  Harri- 
Bon,  65  N.  C.  8;  Hurt  v.  Nave,  49  Ala.  459;  Davis  r.  Moore,  103  111.  445; 
Barber  r.  Peay,  31  Ark.  392;  Junes  v.  Bay,  50  Ala.  579;  Lewis  v.  Coombs,  GO 
Mo.  44. 

■■'  HuHton  V.  Duncan,  1  Busli,  205;  Holeman  v.  Holeman,  2  Bush,  514;  Wag- 
nou  V.  McCoy,  2  Bibb,  198;  "Jkistow  v.  Payton,  2  T.  B.  Mon.  91;  15  Am.  Dec. 
134. 

'  Stymets  ?•.  Brooks,  10  Wend.  210.  See  also  Ch'crtou  v.  Perkins,  10  Ycrg. 
328:   and  Rutherford  /•.  Reed,  G  Humph.  423. 

«  Wood  o.  MorLhouBC,  45  N.  Y.  373. 

*  Coakrito  v.  Hart,  10  Tex.  140;  Chandler  v.  Burdett,  20  Tex.  42;  McMiller 
V.  Butler,  20  Tex.  402;  but  the  uuLhoriLy  of  those  coses  ia  aomewhat  shaken  iu 


Sa7a  ISSUTNO   TllK  ORICINAL  KXECUTION.  00 

• 

g  37  a  Issuing:  Executions  on  Decrees.  AVluro 
atUvroo  is  lor  thopayinont  of  a  siiiu  o(  iiioiioy,  it  may 
now,  umlor  tlu*  authority  of  various  I'jii^lisli  aiul  Amor- 
ii\in  .statutes,  l>o  ont'orocil  l)y  ihc  sanu'  writs  of  execu- 
tion as  tliouijh  tlio  rocovory  liad  Ixcu  ;i(  law  iii.^lratl  of 
in  oquitv.'  The  is.suinLT  <'f  thise  writs  may  jj^onerall}- 
bo  obtiiined  l>y  (UMuandinij^  thi-ui  of  tlu'  i)rojH'r  oilici'r  as 
soon  as  thi'  ereiHtor  has  beeonic  entitled  to  innnediate 
eoniphanee  with  the  decree.  In  eases  not  provicK'd  for 
bv  tlio<e  statutes,  resort  must  l)e  liad  to  other  modes  of 
enforeinjj;  Siitistaetlon.  Since  the  writ  of  execution  lia« 
become  obsolete,  it  is  incumbent  on  the  prevailiiiL^  i>arty 
to  have  inserted  in  his  decree,  or  in  some  supjilemcntal 
decree,  a  clause  designating  the  time,  or  the  time  after 
the  service  of  such  decree,  within  which  the  act  required 
bv  it  to  be  done  nmst  be  performed.  A  copy  of  this 
decree  must  then  be  procured  and  served  upon  the 
defendant,  and  in  England,  a  memorandum  nmst  be 
indorsed  thereon  to  the  fi-llowing  cll'cct:  *'  If  you,  the 
within-named  A  B,  neglect  to  oltey  this  decree  by  the 
time  therein  limited,  you  will  l)e  lial)lc  to  be  arrested, 

Webb  r.  Mallard,  27  Tex.  20.  In  Taylor  v.  Snow,  47  Tex.  4G2,  20  Am.  Rep. 
311,  it  wajj  dcUTiuined  that  a  sale  could  uot  bo  collaterally  avoided  on  tl»« 
ground  that  the  <lcfendant  died  before  the  rcuditioa  of  the  judgment  as  well  us 
bvfore  the  issue  of  tlic  execution. 

»  Danicll's  Ch.  Pr.,  4ih  Am.  ed.,  1042,  and  notes.  In  Florida,  the  authority 
to  issue  exocuiiou  on  a  decree  ia  founded  on  rule  7  of  the  rules  of  circuit 
courts  in  suits  in  tHjuity,  which  ia  aa  follows:  "  Final  process  to  execute  any 
decree  may,  if  the  decree  1»«  solely  for  the  payment  of  money,  be  by  a  writ  of 
execution  in  the  form  uncd  in  the  circuit  court.s  in  suita  at  common  law."  For 
■ome  reawjn,  which  the  court  faded  to  diacUme,  ami  whidi  we  can  neitlicr  con- 
ceive nor  imagine,  this  rule  was  held  to  authorize  the  iaauing  of  but  one  exe- 
cution, and,  in  tlie  event  of  the  isaue  and  return  of  an  execution,  to  Icjive  the 
clerk  without  power  to  issue  any  uluu  or  subaeijuent  writ.  Wliito  r.  Stalcy  s 
Ex'rs,  21  Ila.  -i'Mi.  A  rrmlitioiti  fjrjxtnns  may  issue  when  tlie  slieritf  has  seized 
goods  which  remain  unsold  for  want  of  bidders.  If  he  has  ^!<me  out  of  office  he 
may  \m  com|*elle.l  U>  proceed  to  sale  by  the  writ  of  iluUrinjOH  mijter  vkt-comiUm. 
SetODS  Fonnsuf  DccTees,  Judgments,  and  Orders,  4th  ed.,  15G1. 


91  ISSUING  THE  ORIGINAL  EXECUTION.  §  37  b 

under  a  writ  of  attachment  issued  out  of  the  high  court 
of  chancer}',  or  by  the  scrgcant-at-arms  attending  the 
same  court;  and  also  be  Hablo  to  have  3'our  estate  se- 
questered, for  the  purpose  of  compelHng  you  to  obey 
the  same  decree."^  If  the  time  for  performance  is 
fixed  by  the  decree,  the  service  of  the  copy  must  be 
made  before  such  time,  or  an  order  must  be  obtained 
and  served  enhirging  the  time  or  fixing  a  new  jteritKl 
for  such  performance.  The  service  of  the  copy  of  the 
decree  must  be  personal,  unless  the  court  authorizes 
the  ad<)pti<»n  of  stime  otlior  mode.  \Vhen  the  party 
ha.s  absconded,  or  cannot  ho  found,  or  keeps  his  door 
locked,  the  court  will  order  substituted  service  upon  liis 
Bolicitor. 

g  37  b.  Issue  of  Attachment  to  Enforce  Decrees. 
—  In  England,  the  writ  of  attacljment  Wius  formerly 
issued  l>v  the  clerk,  upon  his  being  satisfied  1)}'  affidavit 
of  the  due  .service  of  the  copy  of  decree,  and  that  it  had 
not  lx;en  obeyed  within  the  time  designated;'  but  wc 
believe  it  is  now  generally  the  practice,  bt.th  in  that 
country  and  in  Uie  United  States,  not  to  issue  this  writ 
except  upon  leave  or  order  of  the  court;  and  tliat  this 
order  is  not  issu^'d  until  the  party  alleged  to  Ik-  in  con- 
tempt has  had  notice  of  the  application  thenfor,  and 
an  opportunity  to  show  cause  why  he  shouM  not  l>o 
procccd«xl  against  a.s  ono  guilty  of  a  cont<.'m|)t.'  AfUr 
tlic  attr'ichment  issued,  the  defendant  was  arrested 
thereunder  and  ItMlged  in  prison  if  he  could  be  found, 

•tX*"""-  '    •    Pr.  4lh  Am.  cl..   1043;  Sotoa's  Komu  of  Decrrcm  Ju.l|{. 

mmtM,  4lh  9*1,  lUTi.  I.VJO. 

»  Ik  !■      :  •    \.„.  «sl  .  \<\M. 

*  H.  ■  n.  .lu.liftnrnU,  mud  Onlcrw.  4tli  o<I.,  Utffli  GktM  m. 

M-r-  U    U.  r.  A                    11  K    n  .  40  Mc. 

9»  .                      .      )tArU)  I'ol:                    i'M;  NVi^htman  v. 


§37c  ISSUING  THE  ORIGINAL  EXECUTION.  92 

and  this  imprisonment,  where  it  was  possible  to  arrest 
the  defendant,  seems  to  have  been  a  prerequisite  to 
further  proceedings  against  him.^  The  plaintiff  may, 
if  he  choose,  leave  the  contumacious  defendant  in 
prison  until  lie  pur-ges  himself  of  his  contempt  by 
performing  the  act  required  of  him  and  paying  the 
costs  of  the  contempt. 

§  37  c.  Issue  of  Writ  of  Sequesti^tion.  —  It  may 
happen  that  the  defendant  cannot  be  found  and  ar- 
rested, or  being  found  and  put  in  prison,  remains  there 
without  obeying  the  decree.  In  this  event,  a  further 
remedy  of  the  complainant  is  b}^  the  writ  of  sequestra- 
tion.^ When  it  appears  that  the  defendant  is  out  of 
the  jurisdiction  of  the  court,  this  writ  may  issue  with- 
out first  proceeding  to  sue  out  an  attachment.^  For- 
merly on  the  return  of  non  est  inventus  to  the  writ  of 
attachment,  the  plaintiff  might  have  "  an  order  for  the 
sergeant-at-arms,  and  such  other  process  as  he  was 
formerly  entitled  to,  upon  a  return  non  est  inventus, 
made  by  the  commissioners  named  in  a  commission  of 
rebellion,  issued  for  the  non-performance  of  a  decree  or 
order."*  The  writ  of  sequestration  issues  in  England 
upon  motion,  as  of  course,  when  it  appears  that  the 
defendant  against  whom  the  attachment  issued  cannot 
be  found  within  the  jurisdiction  of  the  court,  or  being 
fomid,  is  imprisoned  and  neglects  to  obey  the  decree. 

1  Kiasey  v.  Yardley,  Dick.  2G5;  Daniell's  Ch.  Pr.,  4tli  Am.  ed.,  1047. 

2  Ross  V.  Colville,  3  Call,  382;  8th  Equity  Rule  of  United  Statey  Courts; 
Roberts  v.  Pattou,  18  Mo.  481. 

»  Re  East  of  England  Bank,  10  Jur.,  N.  S.,  1093;  3  Drew.  &  S.  284.  Writ 
of  sequestration  may  now  issue  in  England  after  service  of  a  copy  of  the  decree. 
Scton's  Forms  of  Decree,  etc.,  4th  ed.,  157G;  Sprunt  v.  Pugh,  7  Ch.  Dec.  507; 
Sykes  v.  Dyson,  9  Eq.  228. 

*  Daniell's  Ch.  Pr.,  4th  Am.  ed.,  1048;  Hook  v,  Ross,  1  Hen.  &  M.  320. 


93  ISSUING  THE   ORIGIXAL   EXECUTION.  §37c 

It  ma}'  issue  against  an  infant/  and  because  of  the 
non-performance  of  every  conceivable  kind  of  decree. 
Hence  it  may  issue  wliere  defendant  refuses  to  produce 
deeds,^  or  to  deliver  property  to  a  receiver,'^  or  to  per- 
form a  personal  duty.*  In  Maryland,  the  plaintiff  seems 
by  statute  to  be  entitled  to  this  writ  without  resortino^ 
to  an  attachment,  or  even  serving  any  copy  of  the 
decree,  or  making  any  demand  for  its  performance.^ 
In  Pennsylvania,  a  writ  of  sequestration  is  "the  execu- 
tion process,  where  judgment  has  been  obtained  against 
corporations,  except  counties  and  townships,  or  others 
of  like  public  municipal  character."  It  is  demandable 
of  right,  and  may  therefore  issue  without  notice.®  The 
writ  of  sequestration  was  irregular  if  issued  at  any  time 
after  the  death  of  the  defendant,  and  was  liable  to  be 
vacated.'  Where  there  is  any  change  of  parties  after 
judgment,  leave  must  be  obtained  for  the  issue  of  any 
writ  of  sequestration.^  The  sequestration  is  a  personal 
proceeding,  and  after  the  death  of  the  party  in  default 
it  cannot  be  revived  against  his  heir  unless  the  decree 
is  for  the  land,  or  for  the  performance  of  a  covenant  in 
which  the  heir  is  bound;  but  it  may  be  revived  against 
the  defendant's  personal  representative  if  the  decree  is 
for  a  mere  personal  demand.''  In  order  to  make  the 
writ  of  sequestration  effective,  it  may  be  necessary  to 
api)ly  to  tlie  court  fnnn  time  to  time  for  further  author- 

•  Anonj'mous.  2  Cli.  Caa.  103. 
'  Trig  r.  Trig.  Dick.  :i'23. 

»  Ptoplu  V.  lUgi.TH,  3  Paige,  103. 

•  GuavLTs  r.  FoiiiiUiiif,  '2  Frccin.  99. 
'  Kcighlcr  V.  Ward,  H  M.l.  'J.>t. 

•  Rcid  V.  N.  W.  Ky  Co.,  3'2  Pa.  St.  257 

'  Chick  V.  Siiiit}i,  8  iJnwl.  P.  C.  337;  4  Jur.  80. 

•  Setona  Forms  of  Decrees,  etc.,  4th  ed.,  1578;  Coulston  v.  Oar.liner,  2  Ch. 
Cm.  43;  Burdctt  r.  Rocklcy,  1  Vcrn.  58,  118. 

•  Danicll'B  Ch.  Pr.,  4tii  Am.  cd.,  10o9,  1033;  Wharam  r.  Broughtoii,  1  Vca. 
182. 


§n7d  ISSUING  THE  ORIGINAL  EXECUTION.  94 

itv.  Thus  wliilo  tlio  sequestrators  may  not,  by  vlrtae 
of  the  writ  alone,  sell  any  property,^  they  may  be 
authorized  to  sell  personal  estate  by  the  court  upon 
nu>tion,  and  after  notice  to  the  defendant.^ 

§  37  d.  Writs  of  Assistance,  for  and  against  Wliom 
may  Issue.  —  If  the  decree  directs  tlie  possession  of 
property  to  be  surrendered  or  given  to  any  person,  he 
is  entitled,  without  first  pursuing  proceedings  by  the 
ordinary  process  of  contempt,  "upon  due  service  of  the 
decree  or  order,  to  an  order  for  a  writ  of  assistance,  di- 
rected to  the  sheriff  of  the  county  where  the  property 
lies,  commanding  him  to  put  the  plaintiff  into  the  pos- 
session of  the  premises  in  question,  pursuant  to  tlie 
decree  or  order.  A  demand  for  possession  is  not  now 
necessary."^  A  writ  of  assistance  may  issue  in  aid  of 
an}^  person  other  than  the  complainant,  who  has  become 
entitled  to  the  possession  of  the  premises,  under  or  by 
virtue  of  the  decree,  or  of  proceedings  taken  for  its 
enforcement.  It  may  therefore  issue  on  behalf  of  the 
sequestrators,*  or  of  receivers,  to  put  them  in  possession 
of  the  defendant's  realty.^  Its  chief  employment  in 
the  United  States  is  to  place  in  possession  persons  who 
have  purchased  real  property  at  foreclosure  or  other 
equity  sales.  Although  such  purchasers  have  a  rem- 
edy by  an  action  at  law  to  recover  such  possession, 
the  court  of  equity  under  whose  proceedings  they  have 
acquired  their  title  interposes  in  their  behalf,  and  re- 

1  Shaw  V.  Wright,  3  Ves.  22. 

»  Mitchell  V.  Draper,  9  Vcs.  20S;  Cowper  v.  Taylor,  IG  Sitn.  314;  Cadell  v. 
Smith,  3  Swan,  30(5. 

»  Daniell's  Ch.  Pr.,  4th  Am.  ed.,  10G2.  This  writ  is  said  to  be  anperseded  by 
the  writ  of  possession.     Seton'a  Forms  of  Decrees,  etc.,  4th  cd.,  15G2. 

♦Daniell's  Ch.  Pr.,  4th  Am.  ed.,  IO.jG. 

*  Siiarp  V.  Carter,  3  P.  Wms.  379,  note;  Cazet  de  la  Borde  v.  Othon,  23 
We.k.  U^,>.  Ua 


95  ISSUTN'G  THE  ORIGINAL  EXECUTION.  §  37  d 

lieves  them,  ia  proper  cases,  from  the  expense,  delay, 
and  annoyance  of  an  independent  action  in  another 
fcrum.^  When  the  purchaser  was  alreadj^  a  party  to 
the  suit,  there  has  never  been  any  doubt  that  this  writ 
would  issue  in  his  name  and  for  his  benefit.^  When, 
however,  the  purcliaser  was  not  a  party  to  the  suit,  it 
has  been  claimed  that  he  was  not  entitled  to  this  writ, 
and  that  he  could  not  otherwise  obtain  its  aid  than  by 
procuring  one  of  the  parties  to  make  the  application 
therefor  in  his  behalf.^  The  decisions  to  this  effect  are 
mere  dicta,  and  are  based  on  false  premises,  to  wit,  on 
the  supposition  that  as  such  purchaser  was  not  a  party 
to  the  suit,  it  would  be  inconi-Tuous  and  irresfular  to 
permit  him  to  take  any  proceeding  therein  in  his  own 
name.  But  a  purchaser  at  an  equity  sale,  from  the  mo- 
ment of  tlic  striking  off  the  property  to  him  as  the 
successful  bidder,  has  ahvaj's  been  treated  as  a  party, 
and  no  court  of  equity  lias  hesitated  to  treat  him  as 
such,  either  when  as  a  moving  party  he  sought  to  obtain 
the  confirmation  of  the  sale,  or  when  as  a  respondent 
he  was  called  before  the  court  for  the  purpose  of  com- 
pelling his  compHancc  with  the  terms  of  the  sale.*  He 
is,  therefore,  substantially  a  party  to  the  suit  from  the 
date  of  his  purchase,  and  the  court  will  issue  its  writ  of 
assistance  in  his  behalf  unless  some  good  reason  is  shown 
for  withholding  it.*^     The  writ  has  been  issued  in  fiivor 

'Terrell  v.  Allison,  21  Wall.  2S9;  Beatty  v.  De  Forest,  27  N.  J.  Eq.  482; 
Diggle  V.  BouMen,  48  Win.  477;  Commonwealth  r.  Dicffeiihach,  3  Grant  Caa. 
3GS;  Brown  v.  Marzyck,  19  Fla.  840;  Voi^'tlan.ler  ?•.  Brotze,  "»•)  Tex.  280. 

'See  casei  l:iat  cittil;  Dorsey  r.  Caniphell,  I  BlamlCii.  30."?. 

MViNonr.  l'„lk,  13  .Sine«le8  &  M.  131;  51  Am.  Dec.  151;  L;inglcy  r.VoU, 
64  Cal.  43(3. 

♦Ke.lunr.  Hay.len,  43  Mis.s.  O');  Clarkson  r.  Ilee<l,  15  Gratt.  206. 

*  Jorifs  >:  Hoojier,  5.)  Mhs.  510;  overruling  on  tliia  point  Wilson  v.  Talk,  13 
Stne.leH&  M.  131;  51  Am.  Dec.  151;  Wilbor  r.  Danol.U,  59  N.  Y.  G57;  Kniglit 
r.  Honglituliug,  94  N.  C.  408;  Scheuck  r.  Conover,  13  N.  J.  Eq.  220;  78  Am. 
Dec.  95. 


§37d  ISSUING  THE  ORIGINAL  EXECUTION.  9G 

of  the  purchaser's  assignee  to  whom  the  conveyance 
^vas  made/  and  also  in  behalf  of  one  to  whom  the  pur- 
chaser granted  the  property  after  conveyance,"  With 
respect  to  the  parties  against  whom  this  writ  will  be  or- 
dered to  issue,  it  must  be  remembered  that  it  is  in  effect 
a  writ  for  the  complete  execution  of  a  decree,  and  there- 
fore that  it  cannot  issue  against  any  one  who  has  the 
right  to  resist  or  question  such  decree.  If  the  person 
sought  to  be  removed  was  not  a  party  to  the  suit,  and 
was  in  possession  prior  to  its  institution,  either  claiming 
advtjrsel}^  to  the  parties^  or  holding  a  right  of  possession 
derived  from  some  of  them,*  and  which  has  not  termi- 
nated, then  the  writ  will  not  issue  to  dispossess  him,  and 
the  purcliaser  wnll  be  required  to  resort  to  some  iiide- 
•pendent  suit  or  action  to  vindicate  his  claim  to  the 
possession.  The  rule  as  to  the  parties  against  whom 
a  writ  of  assistance  may  be  directed  and  enforced  is 
doubtless  the  same  as  the  rule  designating  the  persons 
who  may  be  lawfully  dispossessed  by  an  officer  execut- 
ing a  writ  of  possession,*  to  wit,  the  parties  to  the  suit, 
and  all  persons  receiving  possession  from  or  under  them 
pendente  lite,  by  their  consent  or  connivance,  and  also 
mere  intruders  into  possession  after  the  commencement 
of  the  suit.^  If,  however,  the  statute  requires  a  notice 
of  the  pendency  of  an  action  to  be  filed  and  recorded  to 
operate  as  constructive  notice  of  such  action,  a  pur- 
chaser 'pendente  lite,  in  the  absence  of  such  notice  and 

>  Ekings  V.  Murray,  29  N.  J.  Eq.  .388. 

«N.  Y.  L.  I.  &  T.  Co.  V.  Rand,  8  How.  Pr.  35,  352. 

»  Gelpcke  v.  Milwaukee  R.  R.,  11  Wis.  454;  Howard  v.  R.  R.  Co.,  101  U.  S. 
837;  Froliughuyaeu  v.  Caldcn,  4  Paige,  204;  Brush  v.  Fowler,  30  111.  53;  85 
Am.  Dec.  382. 

*  Thomas  v.  De  Baum,  14  N.  J.  Eq.  37;  Gilcrest  v.  JSIitchell,  37  111-  300. 

*  For  such  rule,  see  pout,  §  475. 

•Hooper  v.  Younge,  69  Ala.  484;  Burton  v.  Lies,  21  Cal.  87;  Brown  v. 
Marzyck,  19  Fla.  840;  Knight  v.  Houghtaling,  94  N.  C.  408. 


97  ISSUING  THE  ORIGINAL  EXECUTION.  §37e 

without  actual  notice  of  the  pendency  of  the  suit,  is  not 
bound  by  the  final  decree,  and  cannot  be  subjected  to  a 
writ  of  assistance  based  thereon.^  And  generally,  a 
writ  of  assistance  will  be  directed  only  in  a  clear  case, 
and  when  the  respondent  cannot  possibly  have  any 
rights  which  were  not  subjected  to  the  decree.'^  If,  for 
instance,  he  sets  up  and  appears  to  claim  in  good  faith 
a  right  to  the  possession  derived  from  and  under  the 
purchaser,^  or  from  the  defendant  prior  to  the  commence- 
ment of  the  suit,*  the  validity  and  effect  of  his  claim 
will  very  rarely,  and  perhaps  never,  be  tried  upon  ap- 
plication for  this  writ,  but  he  will  be  left  in  possession. 
The  writ  has  been  denied  when  the  purchaser  had  de- 
layed for  a  long  period  of  time  to  apply  for  it,^  and  also 
when  the  respondent  had  not  intruded  into  the  posses- 
sion until  some  time  after  the  purchaser  had  received 
his  deed."  In  the  first  case,  the  court  presumed  that  the 
respondent  might  have  acquired  from  tJie  purchaser  some 
right  to  the  possession;  and  in  the  last  case,  the  court, 
while  admitting  its  duty  to  place  a  purchaser  in  posses- 
sion by  removing  parties  unlawfully  withholding  the 
property  at  tlie  execution  of  the  deed,  did  not  conceive 
that  tliis  duty  was  so  continuous  as  to  require  it  to  pro- 
tect the  purchaser  from  subsequent  intrusion. 

^  37  e.    The  Practice  to  be  Pursued  to  Obtain  a 
Writ  of  Assistance  is  not  unil'orm  iu  the  several  states. 

>  Jlarlan  r.  Rackcrhy,  2t  Cal.  501. 

Milauveltr.  Smith,  22  N.J.  E(i.  .31;  Thompson  r.  Campbell,  57  Ahu  18.1; 
Enoa  r.  Conk,  G.">  Cal.  175. 

*  I^ngluy  r.  Voll,  M  Cal.  435;  Barton  v.  Bcatty,  28  N.  J.  E-i.  412;  Mayor 
of  San  .J<>»c  r.  Fulton,  45  Cal.  310. 

♦  Tliompson  r.  .Smith,    1    Dill.  4.">8;  Van  Hook  v.  Throckmorton,  8  Paige, 
33;  Hen(li;r.-(oii  r.  McTucker,  45  Cal.  G47. 

'  Hooper  r.  Yoiigo,  CD  Ala.  484. 

•Rjttn  V.  Binlsall,  11  Abb.  Pr.  222;  19  How.  Pr.  4'Jl. 
Vol.  I. -7 


gSTe  ISSUING  THE  ORIGINAL  EXECUTION.  98 

It  is  not  necessary  in  any  of  the  states  that  the  decree 
contain  any  clause  to  the  effect  that  such  writ  shall 
issue  in  favor  of  the  purchaser,  or  that  the  parties  shall 
surrender  possession  upon  a  sale  and  conveyance  being 
made.^     This  clause,  when  inserted  in  a  decree,  is,  like 
the   award   of  execution   in  a  judgment,   superfluous. 
The  rights  of  the  purchaser  result  from  the  f\icts  that 
there  has  been  a  valid  decree,  a  sale  thereunder,  arid 
the  execution  of  a  conveyance  pursuant  to  such  sale ; 
and  he  is  therefore  entitled  to  be  put  into  possession  of 
the  property.     Formerly  the  practice  was  as  follows : 
1.   Obtain  an  order  on  the  defendant  to  deliver  posses- 
sion ;  2.   Serve  such  order  on  him,  together  with  a  de- 
mand for  possession ;  3.  Have  an  attacliment  issued  for 
disobeying  the  order,  which  attachment  need  not  be 
served;   4.  Make   an  affidavit  showing  these  various 
steps  which  had  been  taken,  on  which,  as  a  matter  of 
course,  an  injunction  issued  against  the  tenant  to  de- 
liver possession ;  5.  Serve  such  injunction,  and  make  an 
affidavit  of  such  service,  and  that  the  delivery  of  posses- 
sion was  refused ;  G.  Move,  ex  'parte  and  without  notice, 
and  upon  the  motion  supported  by  such  affidavits  the 
writ  issued  of  course.^     Manifestly,  several   of  these 
steps  may  be  omitted  without  imperiling  the  rights 
of  any    of  the   parties,  and   they    are   therefore    not 
now  required.     The  acts  now  required  of  the  purchaser 
in  most  of  the  states  are:   1.  Exhibit  his  deed  to  and 
demand   possession   of  the  parties  against  whom    he 
wishes  to  proceed;    2.  Move  the  court  to  issue  the 
writ,  and  upon  the  hearing  of  the  motion  establish 

1  Horn  V.  Volcano  Water  Co.,  18  Cal.  141;  Montgomery  v.  MidcUemiss,  21 
Cal.  103;  81  Am.  Dec.  146;  Dove  v.  Dove,  Dick.  017;  1  Bro.  375;  Kershaw  v. 
Thompson,  4  Johns.  Ch.  G14. 

2  Kershaw  c.  Thompson,  4  Johns.  Ch.  G14. 


99  ISSUING  THE  ORIGINAL  EXECQTION.  §37e 

such  exhibit  and  demand,  and  that  such  parties  remain 
in  possession.^  Thereupon  the  writ  will  be  ordered 
unless  good  cause  is  shown  against  its  issuance.  The 
exhibition  of  the  deed  may  be  rendered  unnecessary 
by  the  conduct  of  the  respondent,  as  where  he  an- 
nounces his  intention  of  withholding  possession,  not- 
withstanding such  deed,  and  in  defiance  thereof^ 

The  authorities  differ  with  respect  to  the  necessity 
of  giving  notice  of  the  application  for  the  writ.  Some 
of  them  treat  it  as  an  ordinary  writ  of  execution,  like 
a  habere  facias  possessionem,  which  may  issue  without 
notice,  because  the  judgment  has  conclusively  estab- 
lished that  the  plaintiff  is  entitled  thereto.^  But  there 
is  this  difference  between  an  ordinary  writ  of  possession 
and  a  writ  of  assistance  in  behalf  of  a  purchaser:  the 
former  is  sanctioned  by  the  original  judgment  or  decree, 
and  is  not  dependent  on  any  facts  or  proceedings  subse- 
quent thereto;  while  the  latter  is  not  proper  unless  there 
has  been  a  valid  sale  and  conveyance  to  the  person 
claiming  to  be  a  purchaser,  nor  unless  the  persons  in  pos- 
session have  refused  after  demand  to  surrender  such  pos- 
session.^ It  is  therefore  proper,  and  we  should  think 
necessary,  that  notice  of  the  application  for  the  writ 
should  be  given  to  the  persons  to  be  affected  thereby. ° 
In  Wisconsin,  by  a  rule  adopted  by  the  supreme  court  for 
the  government  of  tlie  circuit  court,  it  was  the  duty  of 
the  clerk  of  the  latter  court  to  issue  this  writ  when  it 
was  shown  to  him  by  affidavit  tliat  possession  had  been 

»  Montgomery  v.  MicMlcmiss,  21  Cul.  103;  81  Am.  Dec.  14G. 

»  Knight  r.  Iloughtaling,  94  N.  C.  408. 

»  Harney  r.  Morton,  39  Miss.  508;  N.  Y.  L.  I.  <fe  T.  Co.  v.  Rand,  8  How. 
Pr.  35,  3,j2. 

*  Howard  i:  R<u)d,  42  Miclu  131;  firiswold  v.  SiminonH.  50  Miss.  123. 

'  Blauvclt  r.  Siiiitli,  22  N.  J.  Ei^.  31;  Jones  v.  Hooper,  50  Miss.  510;  Hooper 
V.  Yougc,  49  Miu  484. 


§37e  ISSUING    THE  ORIGINAL  EXECUTION.  100 

demanded  and  refused.  He  acted  independently  of  any 
order  of  the  court  of  which  he  was  clerk,  and  he  was 
not  exonerated  from  acting  when  a  proper  affidavit 
M-as  tiled  with  him  by  an  order  of  the  court  or  judge, 
directing  him  to  withhold  any  action/  This  rule  was 
held  to  be  inapplicable  when  the  person  proceeded 
against  was  not  a  defendant  in  the  suit.  As  against 
such  person,  it  was  necessary  to  obtain  an  order  of 
court."  It  is  true  that  a  writ  of  assistance  improperly 
issued  may  be  vacated  on  motion ;  and  if  already  exe- 
cuted, the  parties  may  be  restored  to  their  possession,^ 
and  the  WTongs  resulting  from  its  improvident  issuing 
may  thereby  be  mitigated  if  not  averted.  Neverthe- 
less, in  so  serious  a  matter  as  invading  or  destroying 
the  possession  of  a  freehold,  we  think  it  far  better  that 
the  parties  in  possession  have  notice  of  the  application 
for  the  writ,  and  be  then  given  an  opportunit}^  to  urge 
any  defense  w^hich  remains  open  to  them,  notwithstand- 
ins:  the  decree  and  sale. 

^  Attorney-General  v.  Lum,  2  Wis.  507. 

a  Goit  V.  Dickerman,  20  W^is.  G30. 

'  Skinner  v.  Beatty,  16  Cal.  156;  Chamberlain  v.  Choles,  35  N.  Y.  477. 


101  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §38 


CHAPTEE   in. 

THE  FORM  OP  THE  ORIGINAL  EXECUTION. 

§  38.  Essential  parts  of  the  writ. 

§  39.  Omission  of  the  style  of  the  writ. 

§  40.  To  whom  directed. 

§  41.  Words  commanding  levy. 

§  42.  The  description  of  the  judgment. 

§  43.  Consequence  of  variance  between  execution  and  the  judgment. 

§  44.  Designating  the  return  day. 

§  45.  Clause  of  attestation. 

§  46.  The  seal. 

§  47.  Alteration  subsequent  to  issue  of  writ. 

§  47  a.     Forms  of  executions  on  decrees. 

§  38.  The  Essential  Parts  of  the  Writ.  —  In  the 
preceding  chapter  we  have  seen  that,  before  an  original 
execution  can  properly  issue,  there  must  be,  —  1.  A 
court  competent  to  issue  the  writ;  2.  A  judo-ment, 
decree,  or  order  which  the  law  authorizes  to  be  put  in 
execution  by  aid  of  the  writ;  3.  A  demand  for  the 
writ,  made  to  the  proper  officer  by  the  proper  person, 
against  a  defendant  whose  property  is  subject  to  exe- 
cution ;  4.  The  time  allowed  for  issuing  the  writ  must 
have  commenced,  and  must  be  still  unexpired;  and  5. 
Nothing  must  have  occurred  to  suspend  or  postpone 
the  riglit  to  execution.  AVhen  inquiries  in  regard  to 
these  five  prerequisites  have  all  been  answered  in  the 
affirmative,  the  riglit  to  an  execution  must  be  conceded. 
The  next  inquiries  are  ^i  regard  to  the  writ  itself,  — 
wliat  must  its  contents  be,  and  in  what  form  and  order 
shall  they  be  set  forth.^     In  most  of  the  states,  pro- 

'  For  fonnH  of  writa  at  common  law  and  in  equity,  ace  the  note  at  the  end 
of  thia  chapter. 


/ 


§38  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  102 

vision  is  made  by  statute  for  the  form  and  contents  of 
executions.  It  bas  been  held  that  where  tlie  statute 
provides  a  form,  that  form  must  be  strictly  followed, 
especially  by  justices  of  the  pcace.^  But  wc  apprehend 
that  this  dtj^cision  was  made  under  a  misconception  of 
the  true  purposes  of  such  statutes,  and  that  it  cannot 
be  regarded  as  a  correct  interpretation  of  the  law. 
The  object  of  these  statutes  is  to  enumerate  the  sub- 
stantial elements  of  the  writ,  rather  than  to  command 
adherence  to  a  prescribed  form.  A  writ  of  execution 
is  simply  an  authorization  proceeding  from  and  directed 
to  some  competent  authority,  by  which  tlie  former 
requires  the  latter  to  do  some  act.  To  accomplish  its 
purpose,  it  must  necessarily  state  with  certainty  the 
act  to  be  done.  Whenever  a  writ  shows  the  authority 
whence  it  proceeded,  and  is  directed  to  an  officer  com- 
petent to  execute  it,  giving  directions  sufficient,  if 
followed,  to  result  in  the  proper  execution  of  the  judg- 
ment, we  apprehend  that  it  will  be  almost  uniformly 
upheld;  and  that,  instead  of  requiring  unusual  strict- 
ness from  justices  of  the  peace,  the  writs  of  those 
officers  will  be  granted  unusual  indulgence.^  Hence, 
when  by  statute  an  alias  execution  issued  by  a  justice 
is  required  to  have  appended  to  it  a  copy  of  the  return 
made  on  the  former  writ,  the  failure  to  append  such 
return  is  a  mere  irregularity  rendering  the  execution 
voidable,  but  not  void.^  So  the  failure  of  a  justice  to 
insert  the  name  of  the  county,  township,  or  city  in  the 

>  Streeter  v.  Frank,  4  Chand.  93.  ^ 

■^  Burdick  v.  Shigley,  30  Iowa,  G3;  Cooley  v.  Brayton,  IG  Iowa,  10;  Deaii  v. 
Goddard,  13  Iowa,  292;  81  Am.  Dec.  433;  McMahan  v.  Colclougli,  2  Ala.  G8; 
Chase  v.  Plymouth,  20  Vt.  469;  50  Am.  Dec.  52;  Morrison  v.  Austin,  14  Wis. 
601.  A  fen  facias  in  debt  upon  a  judgment  im,  eummpsit  is  not  void.  Elms- 
ley  V.  McKenzie,  9  U.  C.  Q.  B.  559. 

»  Culbert3on  v.  Milhollin,  22  Ind.  3G2;  85  Am.  Dec.  428. 


103  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §  39 

blanks  intended  for  such  names  is  a  mere  clerical  irreg- 
ularity in  the  writ,  which  "as  against  a  stranger  to  it, 
resisting  the  claim  of  a  purchaser  under  it,  is  curable 
by  parol  evidence.'     Where,  as  in  Tennessee,  a  justice 
of  the  peace  of  one  county  is  authorized  to  issue  exe- 
cution on  a  judgment  rendered  by  a  justice  of  another 
county,  upon  receiving  a  certain  certificate  from  the 
clerk  of  the  latter  county,  it  has  been  held  that  if  the 
execution  as  issued  shows  that  the  certificate  of  the 
clerk  was  substantially  defective,  the  writ  is  void,  on 
the  ground  that  it  is  issued  under  a  new  and  special 
jurisdiction,  which  "must  be  strictly  pursued  to  make 
valid  the  proceedings  under  it.'"     The  form  of  execu- 
tion most  usually  adopted  contains  the  following  par- 
ticulars: 1.    It  purports  to  issue  in  the  name  of  some 
sovereign  power ;  in  England,  the  name  of  the  reigning 
monarch  is  used;  in  the  United  States,  the  name  is 

the   state   of ,    or    the    people   of    the    state    of 

;  2.    It  is  addressed   to  the  sherifi",  or   to  some 

other  officer  competent  to  execute  it;  3.  It  commands 
the  officer  to  do  some  act;  4.  It  shows  the  purpose  for 
which  the  act  is  to  be  done,  or  in  other  words,  the 
judgment  of  which  satisfaction  is  sought;  5.  It  usu- 
ally directs  a  time  and  place  in  whicli  and  to  which  a 
return  must  be  made;  G.  It  closes  with  a  clause  of 
attestation.  We  shall  now  separately  consider  each  of 
these  particulars  for  the  purpose  of  ascertaining  the 
consequence  of  variances  or  omissions  therein. 

g  39.     It  has  always  l>cc!i  the  custom  in  England  to 
issue  the  writ  in  the  niuue  of  the  reigning  sovereign, 

'  Elliott  r.  Hart,  45  T^Iich.  ZU. 

*  Mocio  /•.  Lynch.  4  lUxt.  2b7;  Appcreoa  r.  Smith,  6  Snetil,  371;  Eiujou 
r.  Cumiuiiis,  11  lluiiii>li.  iilO. 


§  ?9  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  104 

and  in  the  greater  portion  of  the  United  States  in  the 
name  of  the  state  or  of  the  people  of  the  state.  This 
portion  of  the  writ  is  purely  formal,  and  we  are  unable 
to  see  that  its  omission  ought  to  prejudice  anj'  one,  pro- 
vided it  appeared  from  the  whole  writ  that  it  was 
issued  by  virtue  of  some  competent  authority.  This 
authority  is  the  court  or  an  officer  of  such  court  to 
whom  is  delegated  the  power  to  exercise  the  author- 
ity of  issuing  uTits,  as  the  act  of  the  court,  for  the 
enforcement  of  its  judgments.  Whether  the  omission 
of  the  stjde  of  the  writ  might  on  prompt  application 
furnish  a  sufficient  ground  for  quashing  the  execution 
has  never,  so  far  as  we  can  ascertain,  been  determined ; 
but  it  surely  would  not  impair  the  efficacy  of  the  writ 
when  offered  in  evidence  to  support  a  sale  of  real  prop- 
erty made  while  such  writ  remained  in  force.^  Doubt- 
less the  law  is  otherwise  in  Illinois.  The  courts  of  that 
state  are  inclined  to  regard  every  statutory  direction 
with  respect  to  the  form  and  contents  of  an  execution 
as  essential  and  mandatory.  Hence  if  the  writ  does 
not  run  in  the  name  of  the  people  of  the  state,  it  will 
then  be  held  void.^ 

1  Hibbert  v.  Smith,  50  Cal.  511;  56  Am.  Dec.  726.  In  this  case  the  writ 
was  for  a  sum  remaining  unpaid  after  a  foreclosure  sale.  The  formal  parts  of 
it  were  as  follows:  "State  of  California,  county  of  Alameda,  ss.:  Whereas,  a 
a  judgment  an<l  decree  of  sale  was  rendered  in  the  district  court  of  the  third 
judicial  district,"  etc.  It  then  recited  the  foreclosure  sale,  the  fact  that  the 
sherifif  had  reported  a  deficiency,  and  then  proceeded  as  follows:  "These  are 
therefore  to  command  you,  as  heretofore  you  have  been  commanded,  that 
of  the  goods  and  chattels,  if  sufficient;  if  not,  then  of  the  lands  and  tene- 
ments of  the  said  William  W.  Chipman,  you  levy  and  cause  to  be  made, "  etc. 
The  writ  was  excluded  from  evidence  by  the  trial  court.  This  was  determined 
to  be  error  by  the  supreme  court,  which  in  so  doing  said:  "  The  execution 
offered  by  defendants,  although  irregular  and  defective  in  form,  was  amend- 
able, and  not  void." 

'  Sndwell  v.  Schumacher,  99  111.  433.  The  general  views  of  the  court  upon 
this  question  were  expressed  as  follows:  Wliile  there  is  some  conflict  of 
authority  upon  this  aubject,  yet  it  is  believed  that  the  weight  of  authority 


105  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §40 

§  40.  To  V/hom  Directed. — "By  the  ancient  law  of 
the  land,  all  wiits  (except  to  some  few  particular  juris- 
dictions) are  directed  to  the  sheriff  of  the  county  where 
the  cause  of  suit  arose ;  and  cannot  be  directed  to  any 
other  person,  unless  it  be  in  special  cases  where  there 
is  good  cause  of  exception  against  the  sheriff/  and 
there  the  writ  shall  be  directed  to  the  coroner,  who 
then  standeth  in  the  place  of  the  sheriff;  as  where  it  is 
alleged  that  the  sheriff  is  of  kin  to  any  party  in  the 
writ,  or  where  the  sheriff  is  himself  a  party  to  the  suit, 
whether  plaintiff  or  defendant;  also  in  some  cases  where 

establishes  the  proposition  that  where  the  law  expressly  directs  that  process 
shall  be  in  a  spccifiel  form,  and  issue  in  a  particular  manner,  such  a  provision 
is  mandatory,  and  a  failure  on  the  part  of  the  official  whose  duty  it  is  to  issue 
it  to  comply  with  the  law  in  that  respect  will  render  such  process  void.  On 
the  other  hand,  it  is  well  settled  that  there  are  many  merely  formal  defects 
which  do  not  have  that  effect.  To  illustrate,  where  the  statute  or  constitution 
expressly  requires  that  process  shall  issue  under  the  seal  of  the  court,  and  be 
tested  in  the  name  of  and  signed  by  the  clerk,  the  failure  to  comply  with 
either  of  tliese  requirements  would,  as  it  is  believed,  according  to  the  weight 
of  authority,  render  tlie  procdss  void.  The  legislature  or  the  people,  through 
the  constitution,  have  the  unquestionable  right  to  say  of  what  process  shall 
consist;  aad  wliea  they  have  declared  that  it  shall  be  of  a  specified  form,  by 
implication  all  other  forms  are  prohiliited.  If  such  laws  are  merely  directory, 
then  writs  are  as  valid  without  their  observation  as  with  it,  and  every  clerk 
would  be  at  liberty  to  issue  process  in  whatever  form  mi£;ht  suit  his  fancy. 
If  one  of  these  requirements  may  bo  omitted,  all  may,  on  the  same  principle. 
Under  such  a  system,  one  clerk  might  conclude  that  the  ceremony  of  attaching 
a  seal  w.oa  idle  an  1  useless;  another  miglit  think  the  writ  would  bo  sufficient 
with  a  seal,  and  that  the  addition  nf  tlic  name  of  the  clerk  would  tlierefore  lie 
Buperfluou.s;  another  might  think  all  these  rcquireinenta  of  the  law  aro  but 
idle  ceremonies,  and  for  them  substitute  something  altogether  different. 
Under  »>ich  a  system  of  things,  how  couM  the  defendant,  in  the  process,  know 
wliat  was  valid  and  Ijinding  upon  him  and  what  was  not,  and  when  to  obey 
and  when  not  ?  And  liow  could  tlie  officer  into  whoso  hands  it  was  delivered 
for  execution  know  whether  he  would  bo  protected  in  serving  it  or  not?  And 
wliat  would  1>ecomoof  the  almost  nuinborlcHs  questions  discuHseil  by  the  courts 
and  legal  author*,  founde<l  upon  the  KUppontd  distinction  belwcwn  void  and 
vuidablo  prfK-cHs,  if  there  arc  no  essential  requircnicnts  by  winch  the  ono  can 
b6  dii»tingui«he.l  from  tlie  other? 

»  WalUT  V.  Dunisou,  24  Vt.  551;  Pcirn  v.  LjhcrwooJ,  C  Gill,  20C. 


41  THE  FORM  OF  THE  OraGINAL  EXECUTION. 


106 


tho  sheriff  maketh  default  of  serving  process." '  When 
the  writ  issues  to  the  coroner,  it  need  not  disclose  the 
reason  why  it  is  not  issued  to  the  sheriff.'  A  sale 
made  by  a  sheriff  under  a  writ  issued  upon  a  judgment 
in  favor  of  himself  is  void.^ 

§41.     Words  Commanding  Levy.  —  In  Indiana  an 
execution  recited   the  rendition  of  the  judgment,  and 
added  "by  levy  and  sale  of  the  goods"  of  the  judgment 
defendant,  "and  make  due  return  thereof  within  six 
months  from  date."     It  did  not  contain  any  other  words 
of  command  or  direction.     The  supreme  court  of  the 
state  held  that  this  writ  did  not  justify  the  officer  to 
wdiom  it  was  directed  and  delivered  in  levying  on  the 
property  of  the  defendant.*     It  may  be  that  under  the 
law  it  is  the  duty  of  the  sheriff  to  levy  on  one  kind  of 
property  in  preference  to  another,  and  that  the  writ 
ought  to  command  him   accordingly.     Thus  in  New 
York,  under  a  certain  class  of  judgments,  the  statute 
required  the  execution  to  direct  the  sheriff  to  satisfy  it, 
first,  out  of  attached  personalty ;  second,  out  of  any  other 
personalty  which  could  be  found;  and  third,  out  of  at- 
tached real  property.     A  writ  which  "  commanded  the 
sheriff  to  collect  the  judgment  out  of  the  attached  per- 
sonal property  of  the  judgment  debtor,  and  if  that  was 
insufficient,  out  of  his  attached  real  property,"  was  ad- 

1  Bingham  on  Jiulgmentrt  aud  Executions,  222.  In  Texas  process  issues  to  a 
constable  when  the  sherifif  is  disqualified.     McClane  v.  Rogers,  42  Tex.  214. 

•''  Bastard  v.  Trutch,  i)  Nott  &  McC.  109;  4  Dowl.  P.  C.  6;  3  Ad.  &  E.  451;  1 
Bar.  &  W.  .321;  see  Moss  v.  Thompson,  17  Mo.  405.  A  ^v^it  directed  to  the 
coroner  because  of  a  vacancy  in  the  sheriff's  office  may  be  turned  over  to  the 
mew  sheriff  after  his  appointment.     Carr  v.  Youse,  39  Mo.  340;  90  Am.  Dec. 

470.     A  writ  directed  to  thw  constable  of seems  to  have  been  regarded  as 

invalid  in  Hall  v.  Moor,  Addis.  37G. 

»  CoUais  V.  McLeod,  8  Ired.  221;  49  Am.  Dec.  37G;  Elston  v.  Bret,  Moore, 
547;  E.owlet'8  Caae,  Dyer,  188  a;  Chambers  v.  Thomas,  1  Litt.  268. 

♦  GaskiU  v.  Aldrich.  41  Ind.  338. 


107  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §42 

judged  void.^  No  reason  was  oiven  for  the  decision 
other  than  that  the  statute  was  peremptory  in  its 
requirement,  and  obviously  intended  that  the  defend- 
ant's personalty,  whether  attached  or  not,  should  first 
be  appropriated  under  the  writ  before  any  resort  could 
be  had  to  his  realty.  This  reason  appears  to  be  far 
from  conclusive.  The  statute  in  question  does  not  seem 
to  be  more  peremptory  than  any  of  the  other  statutory 
provisions  requiring  or  directing  certain  things  to  be 
done  in  and  about  the  issuing  and  enforcing  of  writs; 
and  by  an  almost  unanimous  judicial  concurrence  most 
of  these  other  provisions  are  treated  as  directory  merel}^, 
—  as  being  provisions  in  the  interest  of  the  defendant, 
and  upon  which  he  may  insist  by  obtaining  the  vacation 
of  any  writ  or  proceeding  not  in  substantial  conformity 
therewith,  and  which  he  may  and  does  waive  by  re- 
maining inactive  and  permitting  his  property  to  be 
taken  and  sold  thereunder  without  any  protest.  Hence 
we  think  the  better  rule  upon  this  subject  is,  that  the 
omission  in  an  execution  to  direct  the  order  in  which 
different  classes  of  property  should  be  seized,  or  even 
a  misdirection  in  this  regard,  is  a  mere  amendable  de- 
fect and  whether  corrected  or  not  cannot  make  the 
writ  void.^ 

§  42.  Describing  the  Judgment.  —  In  regard  to  the 
particulars  considered  in  the  last  three  sections,  very 
little  litigation  has  arisen.  We  now  come  to  the 
fourth  and  most  injportant  particular, — one  in  regard 
to  which  omissions  and  variances  are  most  likely  to 
occur,  and  which,  therefore,  is  most  likely  to  furnish 

>  Placer.  Riley.  OS  N.  V.  I. 

»  Wright  V.  Young,  0  Or.  87;  CliufeBcalca  v.  ILiIl,  16  S.  C.  G02;  Wt»t  v. 
Krcbauin,  HH  111.  203. 


§4-2  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  108 

frequent  occasion  for  judicial  determination.  In  this 
part  of  the  execution  the  same  precision  must  be 
attained  as  is  necessary  in  the  entry  of  a  judgment. 
It  should  show  for  and  agaiiist  whom  the  execution 
issues;  the  amount  or  amounts  to  be  taken  from  the 
latter  for  the  benefit  of  the  former;  and  also  the  date 
at  which  and  the  court  wherein  the  judgment  was 
rendered.  No  execution  can  be  proper  in  form,  unless, 
with  reference  to  these  particulars,  it  exactly  pursues 
the  judgment.^  Hence,  an  execution  against  a  man  in 
his  private  capacity  cannot  properly  issue  on  a  judgment 
against  him  as  administrator;  and  a  sale  thereunder  has 
been  held  to  pass  no  title.  A  judgment  in  favor  of  one 
as  administrator  or  executor  may  support  an  execution 
issued  in  his  favor  without  mentioning  his  representa- 
tive capacity,  when  the  notes  on  which  the  judgment 
was  entered  were  made  to  him  in  such  capacity,  because 
in  that  event  the  title  to  the  property  and  judgment  is 
vested  in  him  personally,  and  all  proceedings  thereon 
may  properly  be  conducted  in  his  name.^  It  is  no  ob- 
jection to  an  execution  that  it  issues  in  favor  of  plaintiff 
as  administrator,  without  saying  of  whom.^  The  omis- 
sion of  plaintiff's  name  from  the  body  of  the  writ  does 
not  make  it  a  nullity,  where  the  indorsement  shows 
who  were  the  parties  to  the  suit.^  So  in  regard  to  the 
number  of  the  plaintiffs,  the  execution  should  agree 
with  the  judgment,  and  not  on  any  account  specify- 
more  nor  less  names  than  are  to  be  found  in  the  judg- 

^  Reese  v.  Burt's  Adm'r,  .39  Ga.  565;  Hightower  v.  Handlin,  27  Ark.  20; 
Jenniags  v.  Pray,  8  Yerg.  84;  Kneib  v.  Graves,  72  Pa.  St.  104;  Bain  v.  Chris- 
man,  27  Mo.  293;  Wilson  v.  Renter,  29  Iowa.  176. 

^  Moughton  V.  Brown,  68  Ga.  207. 

3  Saffold  V.  Banks,  09  Ga.  2S9. 

*  McGuire  v.  Galligan,  53  !Mich.  453. 


109  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §42 

ment  entry/  It  is  indispensable  that  the  execution 
should  show  upon  whose  property  it  is  to  be  levied.  If 
it  does  not,  it  is  worthless,  and  cannot  support  title 
derived  through  a  sale  thereunder.^  The  execution 
must,  on  its  face,  appear  to  be  against  all  the  defendants, 
notwithstanding  from  death,  bankruptcy,  or  some  other 
cause  no  levy  can  be  made  on  the  pro[>erty  of  some.^ 
The  execution  ouGfht  also  to  state  the  name  of  each 
defendant  as  it  is  set  forth  in  the  judgment.  If  the 
name  be  incorrectly  stated  in  the  judgment,  there  is 
not,  until  the  judgment  is  amended,  any  authority  for 
execution  against  defendant  in  his  true  name.^  An 
execution  in  the  name  of  William  Barnes,  guardian,  is 
not  supported  by  a  judgment  in  the  name  of  Charity, 
Penelope,  and  Sarah  Newsom,  by  their  guardian,  Wil- 
liam Barnes.^  It  is  indispensable  that  the  amount  to 
be  collected  should  be  specified  in  the  writ;  otherwise 

1  Tanner  v.  Grant,  10  Bush,  302;  Home  v.  Spivey,  44  Ga.  616;  Palmer  v. 
Palmer,  2  Coim,  402;  Wilson  v.  McGee,  2  A.  K.  Marsh.  600;  Beazley  v.  Dunn, 
8  Rich.  345. 

2  Douglas  V.  Whiting,  28  III.  362. 

'  Linn  v.  Hamilton,  34  N.  J.  L.  305;  Saunders  v.  Gallaher,  2  Humph.  445; 
Farmcia' and  Mcilianics' National  Bank  v.  Crane,  15  Abb.  Fr.,  N.  S.,  4;J4;  Clarke 
V.  Clement,  6  Term  Rep.  525;  Raynes  v.  Jones,  9  Mces.  &  W.  104;  1  Dowl., 
N.  S.,  373;  6  Jur.  133;  .Johnston  v.  Lynch,  3  Bibb,  334;  Erwin  i-.  Dundas,  4 
How.  58;  Briuton  v.  Gerry,  7  111.  App.  238;  Sheetz  v.  Wynkoop,  74  Pa.  St. 
198;  Conn  v.  Pender,  1  Smcdes  &  M.  380;  Siiaffcr  v.  Watkins,  7  Watts  &  S. 
219;  Cumberland  Coal  Co.  v.  Jeffries,  26  Md.  526;  Mortland  v.  Himes,  8  Pa.  St. 
205;  Leo  ik  Crosana,  G  Hunipii.  281.  The  writ  should  also  i.ssue  in  the  names 
of  all  the  plaintiffs,  though  one  bo  dead.  Stewart  v.  Cunningham,  22  Ala.  626. 
Omitting  tiio  name  of  a  defendant  from  an  ali/iH  writ  is  fatal  to  the  continuance 
of  its  lien  against  him.  Brem  r.  Jamieson,  70  N.  C.  567.  Whore  execution  is 
stayed  as  against  one  defuudant,  because  he  is  a  soldier,  it  may  bo  enforced 
againat  the  otliers.     Sheetz  v.  Wiidioop,  74  Pa.  St.  198. 

*  Farnham  v.  Hildreth,  32  Barb.  277;  Bank  of  United  States  v.  McKenney, 
3  Cranch  C.  C.  173.  But  the  insertion  of  a  middle  initial  in  the  execution 
vrheu  there  is  uono  in  the  judgment  is  immaterial.  McMahou  v.  Colclough,  2 
Ala.  68. 

'  Newsom  V.  Newsom,  4  Ired.  38 1. 


§43  THE  FORM  OF  THE  ORKJINAL  EXECUTION.  110 

tbo  officer  has  no  authority  to  collect  anything,  nor  to 
make  any  levy  or  sale.^  The  amount,  when  given, 
shouKl  not  vary  from  the  judgment.  An  execution 
var3'ing  from  the  judgment  is  irregular,  although  the 
amount  for  wliich  it  issues  is  less  than  that  authorized 
by  the  judgment."  It  has  been  held  that  a  variance 
between  the  true  date  of  the  judgment  and  that  set 
forth  in  the  execution  renders  the  latter  a  nullity;'^  but 
we  shall  hereafter  show  that  this  is  not  sustained  by 
authority.  In  Massachusetts,  an  execution  issued  by 
a  justice  of  the  peace,  and  signed  by  him  in  his  official 
capacity,  recited  that  the  judgment  was  recovered  be- 
fore him  as  ** trial  justice,"  when  there  was  no  such 
officer  known  to  the  law.  The  court  held  this  execu- 
tion to  be  void,  because  "it  purports  to  be  on  a  judg- 
ment recovered  before  a  tribunal  which  then  had  no 
existence."*  In  Maryland,  when  the  judgment  was  the 
result  of  proceedings  by  attachment  and  was  for  the 
seizure  and  sale  of  certain  property,  but  the  execution 
issued  was  as  if  the  judgment  had  been  a  general  judg- 
ment in  personam,  the  writ  was  adjudged  to  be  void, 
because  the  court  reoi'arded  the  case  as  one  not  of  a 
misdescribed  judgment,  but  of  the  issuing  of  a  writ 
which  there  was  no  judgment  to  support.'^ 

§  43.  Consequences  of  Variance  between  the  Writ 
and  Judgment.  —  The  decisions  in  regard  to  the  con- 
sequences of  issuing  an  execution  in  which  the  judg- 
ment on  which  it  is  based  is  misdescribed  in  one  or  more 

^  Maxwell  v.  King,  3  Yerg.  460;  Wright  v.  Nostrand,  15  .Tones  &  S.  441. 

2  Weliber  v.  Hutchins,  8  Mees.  &  W.  319;  1  Dowl.,  N.  S.,  95;  King  v.  Birch, 
2  Gale  &  D.  513;  Cobbold  v.  Chilver,  4  Scott  N.  R.  078;  1  Dowl.,  N.  S.,  726; 
4  Man.  &  G.  162;  0  Jur.  346. 

3  Cutler  V.  Walsworth,  7  Conn.  6;  Rider  v.  Alexander,  1  D.  Chip.  267. 
*  Palmer  v.  Crosby,  1 1  Gray,  46. 

4  Deakins  v.  Rex,  GO  Md.  593. 


Ill  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §43 

particulars  are  not  entirely  in  harmony  with  one  an- 
other.    This  is  particukirl}'  the  case  when  tlie  error  in 
the  writ  has  not  been  corrected  in  any  manner,  and  the 
officer  has  proceeded  to  make  a  levy  and  sale.     Here 
it  must  follow  that  the  error  must  be  overlooked,  or 
the  purchaser  must  be  made  to  severely  suffer  for  that 
frr  which  he  is  not  justly  blamable.     There  are  loose 
remarks  in  the  early  reports,  to  the  effect  that  an  ir- 
rcQ-ular  execution  is  void,  while  an  erroneous  execution 
is  merel}'  voidable.     No  test  is  there  or  elsewhere  pre- 
scribed   by  which   to  determine  one  from   the  other. 
Courts  have  often,  ^^'itllout  any  want  of  logical  acumen, 
arrived  at  the  conclusion  that  an  execution  issued  con- 
trary to  established  rules  of  practice,  or  in  a  form  differ- 
ent from  that  prescribed  by  those  rules,  is  not  regularly 
issued,  and    therefore  must  be  deemed  "an  irregular 
execution  ";  and  they  have  therefore,  not  unfrequently, 
under  the  authority  of  the  loose  remarks  just  referred 
to,  held  such  executions  to  be  void.     There  can  be  no 
just  distinction  made  between  an  irregular  and  an  erro- 
neous execution,  for  an  erroneous  execution  is  neces- 
sarily irregular,  and  an  irregular  execution  is  necessarily 
erroneous.     There  is  a  just  distinction  between  execu- 
tions issued  witliout  authority,  and  executions  issued 
under  an  authority  whicli  is  erroneously  pursued;  but 
these  two  classes  of  executions  cannot  be  accurately 
desifrnatcd  as  irre<rular  and   erroneous.     The   former 
class  is  void;  tlie  latter  may,  with  equal  propriety,  be 
termed  cither  irregular  or  erroneous.     When  an  execu- 
tion can  properly  issue,  a  mistake  made  by  the  officer, 
in  pcTforining  the  duty  uf  issuing  it,  is  necessarily  a 
mere  error  or  irregularity.     It  is,  however,  necessary 
that  an  execution  should  have  a  judgment  to  support 


§43  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  112 

it ;  and  that  it  should  appear  from  the  execution  what 
judo-mont  is  intended  to  bo  enforced.  The  reason  why 
the  description  of  the  judgment  is  inserted  in  the  writ 
is,  that  the  otHcer  may  know  what  he  is  to  enforce,  and 
tliat  the  writ  may,  by  inspection,  be  connected  with  the 
authority  for  its  issuance.  When  a  sale  has  been  made 
by  a  sheriff,  we  apprehend  that  the  purchaser  need 
show,  in  support  of  his  title,  nothing  except  a  judgment, 
an  execution  thereon,  and  a  sale  and  conveyance  under 
such  execution.  When  the  execution  is  offered  in  evi- 
dence, it  may  vary  from  the  judgment  in  some  respects, 
and  correspond  with  it  in  others.  The  question,  then, 
before  the 'court  is.  Did  this  execution  issue  on  tfds  judg- 
ment f  If,  from  the  whole  writ,  taken  in  connection  with 
other  facts,  the  court  feels  assured  that  the  execution 
offered  in  evidence  was  intended,  issued,  and  enforced 
as  an  execution  upon  the  judgment  shown  to  the  court, 
then  we  apprehend  that  the  writ  ought  to  be  received 
and  respected.^  When  an  execution  is  not  in  proper 
form,  or  when  it  misrecites  the  judgment,  as  no  one  but 
the  defendant  can  be  injured,  no  one  but  he  ought  tO' 
be  allowed  to  complain ;"  and  his  complaints  ought  not 
to  be  heard  when,  by  his  apathy,  he  has  allowed  the 
rights  of  third  persons  to  attach  themselves  to  the  ex- 
ecution, or  even  when  he  has  allowed  plaintiff  to  be 

1  Hunt  V.  Loucks,  38  Cal.  .372;  99  Am.  Dec.  464;  Miles  v.  Kuott,  12  Gill  & 
J.  442;  McCoUuin  v.  Uubbert,  13  Ala.  282;  48  Ain.  Dec.  56;  Doe  v.  Gililart, 
4  How.  (Miss.)  267;  Barkers.  Tlanters' Bank,  5  How.  (Mids.)566;  Kecler  c.  Neal, 

2  Watt?,  424;  Durham  v.  Heatou,  28  111.  264;  81  Am.  Dec.  275;  Graham  v. 
Price,  3  A.  K.  Mn.rsh.  .'>22;  13  Am.  Dec.  199;  Jackson  v.  Streeter,  5  Cow.  529; 
Healy  v.  Prcstou,  14  How.  Pr.  20;  Jackson  v.  Walker,  4  Wend.  462;  Jackson 
r.  Anderson,  4  Wend.  474;  Sprott  v.  Reiil,  3  G.  Greene,  489;  56  Am.  Dec.  549; 
Jackson  r.  Davis,  13  Johns.  7;  Corbia  v.  Pearce,  81  111.  461;  Hall  v.  Clagett, 
63  MJ.  57;  Davis  c.  Kline,  76  Mo.  310;  Jones  v.  Dove,  7  Or.  467. 

»  Swiggart  V.  Harder,  4  Scaui.  364;  39  Am.  Dec.  418;  Harlan  v.  Harlan,  14 
Lea,  107;  Ciiapman  --.  Dyett,  11  Wend.  31;  25  Am.  Dec.  598;  MiLohdl  v.  Toole, 

03  Ga-  95;  GO  Am.  Rep.  502. 


113  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §43 

placed  in  a  worse  situation  than  though  prompt  com- 
plaint had  been  made.  Where  sufficient  appeared  on 
the  face  of  the  execution  to  connect  it  with  the  judg- 
ment, courts  have  frequently  disregarded  variances  in 
the  names  of  the  parties,^  in  the  date,'  or  in  the  amount 
of  the  judgment.^ 

*  Barnes  v.  Hayes,  1  Swan,  304;  Blake  v.  Blancliard,  48  Mc.  297;  Lee  v. 
Crossna,  G  Humph.  281;  Hayes  r.  Bernard,  38  111.  297;  Couch  v.  Atkinson.  32 
Ala.  633;  Morse  v.  Dewey,  3  N.  H.  535;  Thornton  r.  Lane,  11  Oa.  459;  Lewis 
r.  Avery,  8  Vt.  289;  30  Am.  Dec.  409;  Holmes  v.  Mcludoe,  20  Wis.  057. 

^  Perkins  r.  Spaukling,  2  Gibbs,  157;  Stewart  v.  Severance,  43  Mo.  322:  97 
Am.  Dec.  392;  Bank  of  ^Miitehall  v.  Pettis,  13  Vt.  395;  37  Am.  Dee.  000; 
Brown  r.  Bett.«,  13  Wend.  30;  Liebig  r.  Rawson,  1  Scam.  272;  29  Am.  Dec. 
354;  Hull  V.  Blaisdell,  1  Scam.  332;  Swift  v.  Agnes,  33  Wis.  228;  iUexauder 
V.  Miller,  18  Tex.  893;  70  Am.  Dec.  314;  Mollison  v.  Eaton,  fo  Minn.  426; 
Millis  V.  Lombard,  32  Minn.  259;  Nims  v.  Spurr,  138  Mass.  209;  Dailey  v. 
State,  56  Miss.  475;  Davis  r.  Kline,  76  Mo.  310;  Franklin  v.  Merida.  50  Cal. 
289. 

»  Harris  v.  Alcock,  10  Gill  &  J.  226;  32  Am.  Dec.  15S;  Marshall  v.  Green,  1 
S.  W.  Rep.  002  (Ky. );  Perry  r.  Whipple,  38  Vt.  278,  where  the  variance  was 
twenty-five  cents;  Sanders  v.  Ky.  Ins.  Co.,  4  Bibb,  471,  where  tlie  variance  was 
one  cent;  Doe  v.  Rue,  4  Blackf.  263;  29  Am.  Dec.  368,  where  execution  for 
$25.06  issued  on  judgment  for  $24.. 34;  Trotter  v.  Nelson,  1  Swan,  7,  where 
exccutiou  for  $319.00  issued  on  judgment  for  .$328.18;  Cunningham  v.  Felkcr, 
26  Iowa,  117,  where,  on  judgineat  for  $201  debt  and  §7.15  costs,  execution 
issued  for  §201.50  debt  and  §8.40  costs;  Jackson  r.  Pratt,  10  Johns.  381;  Peck 
r.  Tiffany,  2  N.  Y.  451;  Peet  r.  Cowcnhaven,  14  Abb.  Pr.  56,  where  execution 
was  for  §100  more  than  due  on  judgment;  Brace  r.  Show,  16  B.  Mon.  43,  whore 
execvitiou  omitted  interest  given  by  tlie  judgment;  Avery  t:  Bowman,  40  N.  H. 
453;  77  Am.  Dec.  728;  .Jackson  v.  Walker,  4  Wend.  402;  Becker  r.  Quigg, 
64  111.  390;  Jackson  r.  Page,  4  Wend.  5S8;  Parmlec  r.  Hitchcock,  12  ^Vend. 
96,  where  itM-as  held  to  be  the  duty  of  the  sherifl  to  execute  a  writ  for  .^180.71, 
thongb  the  judgment  whereon  the  writ  issued  was  for  §133.59;  Miles  v.  Knott, 
12  Gill  &  J.  442,  where  the  juilgment  w;w  for  §235.83^,  ami  tlio  writ  for 
$295.83i;  Durham  r.  lieaton,  28  III.  204,  where  execution  for  §4,113.50  issued 
on  judgment  for  §^1,441.41;  Dickens  r.  Crane,  33  Kan.  3-14,  wliere  the  judg- 
ment waa  for  $102.12  and  §73.20  costs,  ami  the  writ  for  1.02  12  and  costs 
7.3,20;  Warder  v.  Mdiard,  8  Lea,  r>S\,  where  on  a  judgment  for  five  iiundnd 
and  thirty-fi<ur  dollar.-t,  a  writ  iHsuod  f<ir  (ivo  and  tliirty-four  dollars;  Wil- 
li&ms  r.  Ball,  62  T"x.  fi!0;  30  Am.  Hep.  730,  where  execution,  ia.^uetl  for  §13.37 
ou  a  judgment  for  ^TJ-'K).  The  ca.sc  in  wLicl>  the  largest  variance  iu  amount 
has  occurred,  ho  far  tut  wu  know,  is  lliat  of  Hunt  r.  Loucks,  38  Cal.  372;  99 
Am.  Dec.  404.  T\u»  ra.<«o  wait  an  octiim  of  eji^ctmunt,  in  which  tlie  execution  wom 
offcTod  iu  evidence  aj*  part  of  the  plaiutitfu  claim  of  title.  We  give  the  follow- 
ing oxtnu.U  from  tlioopiuiuu  uf  Uiu  court,  dclivorod  by  Judge  Sauduntou:  "The 
Vol.  I.  -  8 


§43  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  114 

III  Delaware,  a  judgment  was  recovered  for  four  hun- 
dred dollars  payable  in  three  annual  installments.     An 

groiuiil  of  the  lirst  objection  was,  that  the  execution  called  for  §1)!).")  more  than 
the  face  of  the  jmlginent.  Was  it  for  that  reason  rokl,  and  tiiereforo  the  sale 
also?     We  think  it  was  only  voidahle,  and  therefore  the  sale  valid. 

"It  cannot  be  denied  that  to  sustain  a  title  founded  upon  a  sherilT's  sale,  a 
judgment  must  be  produced;  an  execution,  which  the  judge  can  alhrm,  wa3 
issued  upon  the  judgment  produced,  and  a  deed  which  was  given  in  pursuance 
of  the  execution  iuid  the  sale  under  it.  Unless  it  appear  that  the  judgment,  exe- 
cution, and  deed  are  links  of  the  same  chain,  the  title  will  fail.  But  aquestioa 
of  variance  between  them  must  not  be  confounded  with  the  question  of  their 
validity.  The  two  propositions  are  quite  separate  and  distinct.  The  former  is 
a  question  oi  kleniity  oi\ly;  the  latter  assumes  or  concedes  the  identity,  and 
goes  only  to  the  validity  of  the  suspected  instrument.  If  the  execution  diflera 
so  materially  from  the  judgment  that  the  judge  cannot  affirni  that  the  former 
w;is  issued  upon  the  latter,  his  conclusion  is,  not  that  the  execution  is  void,  bat 
that  it  was  not  issued  upon  the  judgment  which  has  been  exhibited  with  it. 
The  conditions  upon  which  the  two  questions  arise  are  not  only  diiierent,  but 
the  question  of  void  or  voidable  does  not  arise  until  the  question  of  variance 
has  been  considered. 

"That  this  execution  was  issued  upon  the  judgment  which  was  exhibited 
with  it  does  not  admit  of  a  rational  doubt.  The  recitals  in  the  execution  cor- 
respond with  the  judgment  in  every  particular,  except  as  to  the  amount;  the 
court,  the  date,  the  parties,  the  general  character  of  the  judgment,  are  all  cor- 
rectly stated  in  the  execution;  and  it  is  not  pretended  that  there  is,  or  was,  any 
other  ju<lgmentof  the  same  court,  of  the  same  date,  between  the  same  parties, 
and  of  the  same  general  character  upon  wliich  the  execution  could  have  been 
issued.  Such  being  the  case,  there  is  no  rational  ground  for  saying  that  the 
judgment  and  execution  are  not  parts  of  the  same  judicial  proceedings;  and  we 
do  not  understand  counsel  as  disputing  this  proposition,  but  as  conceding  it, 
and  insisting  only  that  the  execution  is  void,  because  it  calls  for  too  much 
money. 

"That,  as  a  general  rule,  an  execution  must  follow  the  judgment,  and  con- 
form to  it,  and  that  if  it  varies  materially  from  it,  it  will  be  set  aside,  or  quashed, 
or  amemled,  as  the  case  may  be,  upon  the  motion  of  the  parties  to  it,  who  are 
prejudiced  by  the  error,  is  undoubtedly  true,  as  appears  by  the  cases  cited  b3' 
counsel.  But  that,  and  nothing  more,  being  shown,  we  have  made  but  little 
progress  in  the  present  case.  The  question  is  not  as  to  wiiat  the  court  would 
have  done  with  this  execution  if  the  defendants  in  the  judgment  had  moved  to 
set  it  aside,  to  quash,  or  amend  it,  as  they  might  have  done.  If  such  was  the 
question,  it  could  be  readily  answered.  The  court  would  not  have  set  it  aside, 
but  would  have  allowed  it  to  be  amended  so  as  to  conform  to  the  judgment;  that 
is  to  say,  it  would  have  quashed  it  only  as  to  the  excess.  Stevenson  v.  Castle, 
1  Cliit.  349;  King  /■.  Harrison,  Mi  East,  G1.5;  Morrys  v.  Leake,  8  Term  Rep.  416, 
note  a;  McCollum  v.  Hul^bert,  13  Ala.  282;  48  Am.  Dec.  5(5.  But  quite  a  different 
question  is  here  iiresented,  —  one  which  rests  upon  entirely  different  conditions, 
and  involves  altogether  different  principles.     It  ia  as  to  whaft  ought  to  be  done 


115  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §43 

execution  on  this  judgment,  issued  for  the  whole,  when  a 
part  only  was  due,  and  was  le\'ied  on  the  property  of  the 

with  such  an  execution  when  it  comes  before  the  court  collaterally  as  evidence 
of  title  in  an  action  which  is  not  even  between  the  parties  to  the  execution, 
but  between  entire  strangers  to  it,  and  where  it  is  not  pretended  that  the  exe- 
cution was  ever,  at  anytime,  even  after  the  sale,  set  aside  upon  the  application 
of  the  parties  who  alone  were  injured  by  the  error. "  His  honor  next  proceeded 
to  consider  various  instances  of  void  and  voidable  executions,  and  the  method 
by  which  the  latter  could  be  avoided.  He  also  referred  to  various  cases  in- 
volving variances  between  judgments  and  executions,  and  closed  as  follows: 
"  Wc  regard  the  foregoing  cases  as  establishing,  beyond  a  rational  doubt,  the 
proposition  that  an  execution  which  is  amendable  is  not  void,  and  that  an  exe- 
cution which  merely  calls  for  too  much  money  is  amendable.  It  is  true  that 
the  difference  between  the  judgments  and  executions  were  not  so  great  a-s  in 
the  present  case,  but  no  reference  was  made  in  any  of  them  to  the  maxim,  De 
miiiiiiiU  non  carat  lex,  nor  has  that  maxim,  for  obvious  reasons,  any  application 
to  questions  of  this  character;  it  goes  only  to  the  question  whether  the  amount 
in  dispute  is  too  trifliug  to  attract  the  eye  of  the  court,  and  in  no  respect  illus- 
trates or  controls  a  tjuestion  of  void  or  voidable  process.  To  allow  the  amount 
of  the  excess  —  as  much  or  little  —  to  affect  such  a  question  is  not  only  to  in- 
voke a  principle  wholly  irrelevant  to  it,  but  to  proclaim  that,  in  relation  to  a 
most  important  matter,  there  is  no  settled  rule;  that  if  there  is  any  variance 
at  all,  that  circumstance  does  not  establish  the  character  of  the  execution  as 
void  or  voidable,  but  its  character  must  depend  upon  the  varying  notions 
of  judges  as  to  what  is  or  is  not  a  trifle,  which  b  to  say,  that  the  validity 
of  judicial  process  is  not  to  depend  upon  established  rules  of  law,  but 
upon  judicial  discretion;  or  in  other  words,  the  purchaser  is  not  to  be  told,  in 
round  terms  which  ke  can  understand,  tliat  the  execution  is  or  is  not  void,  and 
that  he  will  or  will  not  get  a  title  if  he  buys,  but  that  if  he  buys  he  must  take  the 
chances,  and  wait  until  his  title  comes,  as  it  surely  will,  before  the  judicial  eye, 
for  inspection,  when  he  will  be  fully  informed  as  to  what,  in  hi-i  ca.'ic,  is  a  trifle 
or  is  not,  and  that  accordingly  ho  haa  or  has  not  got  a  title.  If  it  bo  the  policy 
of  the  law  to  uphold  jucbcial  sales,  wc  know  of  no  way  by  which  that  policy  can 
be  more  effectually  defeated  than  by  the  adoption  of  such  a  rule  of  decision. 
We  say  tulopdon,  Iwcause  we  are  certain  that  no  such  rule  yet  exists.  The  cases 
to  which  we  have  referred  make  no  mention  of  such  a  rule;  they  all  proceed 
upon  the  theory  that,  in  respect  to  mere  variances  between  the  judgment  and 
the  execution,  the  latter  is  amendable,  and  is,  therefore,  not  void,  but  voidable 
only. 

"That  executions  which  arc  merely  voidable  cannot  bo  attacked  collater- 
ally admitii  of  no  delate,  where,  aa  in  this  sUite,  the  common  law  controls 
tlio  question.  A  collateral  attack  can  no  more  be  made  upon  an  erroneous 
exccntion  than  upon  an  erroneous  judgment.  Like  an  erroneous  judgment,  an 
erroncoui  execution  is  valiil  until  sot  aside  upon  a  direct  proceeding  brought 
for  that  puriKJdc;  and  until  Bct  aside,  all  acts  which  have  been  done  under  it 
arc  aljM)  valid.  In  a  collateral  action,  it  cannot  Imj  brought  in  question,  even 
by  a  party  to  it,  much  less,  aa  iu  this  ca«c,  by  a  otraugcr  to  it.     Even  directly 


§13  THE  FORM  OF  THE  ORIGIN/VL  EXECUTION.  116 

detoudant.  Tliis  ^^Tit  was  claimed  to  be  void,  but  the 
court,  after  argument,  admitted  it,  sajdng :  **  The  distinc- 
tion is  between  void  and  voidable  process  ;  between  such 
as  is  merely  irregular  and  such  as  is  absolutely  void. 
Pi-ocess  issued  on  n  judgment  payable  by  installments, 
after  an}'  of  them,  but  before  all  of  them,  are  due,  and 
commanding  the  sheriff  to  levy  the  whole  debt,  would 
be  merely  irregular,  and  it  would  not  be  competent  for 
any  one  collaterally  to  question  it,  and  much  less  the 
sherilf  who  executes  it;  but  it  is  even  doubtful  whether 
the  writ  is  irregular."^  There  must,  however,  in  each 
case,  be  sufficient  to  convince  the  court  that  the  judg- 
ment offered  in  evidence  and  that  attempted  to  be  recited 
in  the  execution  are  one  and  the  same.  Hence,  wliere 
the  judgment  offered  in  evidence  was  rendered  in  a  dif- 
ferent year,  and  for  a  different  amount  from  that  re- 
cited in  the  execution,  and  no  proof  was  offered  to 
show  that  but  one  judgment  had  been  rendered  be- 
tween the  parties,  the  variance  was  regarded  as  fatal." 
A  similar  result  followed  where  there  was  a  variance 


it  cannot  be  attacked  by  a  stranger,  for  it  does  not  lie  in  the  mouth  of  A  to 
say  by  it  B  has  been  made  to  pay  too  much  money,  and  that  therefore  all  pro- 
ceedings under  it  are  null  and  void.  That  is  a  question  which  concerns  B  only, 
and  if  he  is  content,  A  cannot  complain.  Nor  if  B,  who  is  bound  to  know  of 
the  variance  between  the  judgment  and  the  execution,  does  not  interpose  by 
motion  for  its  correction,  ought  he  to  be  allowed  to  question  the  title  of  a  pur- 
chaser under  it, — it  may  be  years  afterward?  He  has  a  remedy,  by  motion 
to  amend,  or  by  action  to  recover  the  excess  of  the  levy  from  the  plaintiff  ia 
the  execution,  and  the  clerk  also;  besides,  with  full  knowledge  of  all  defects, 
he  has  allowed  the  sheriff,  acting  as  his  agent  in  the  matter,  to  sell,  and  the 
purchaser  to  buy,  without  opening  his  lips,  and  in  all  fairness  and  justice  to 
the  latter,  he  must  keep  them  closed  forever  "  But  in  Hastings  v.  Johnson, 
1  Nev.  613,  and  CoUais  v.  McLeod,  8  Ired.  221,  49  Am.  Dec.  376,  executions 
materially  in  excess  of  the  judgments  on  which  they  issu«<l  were  adjudged  to 
be  void. 

1  State  V.  Piatt,  5  Harr.  (Del.)  429. 

2  Harmon  v.  Lamed,  58  111.  167. 


117  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §43 

is  the  names  of  the  parties  and  in  the  amount  of  the 
judgment.^ 

In  North  CaroUna  it  has  been  held  that  a.  fieri  facias 
for  an  amount  in  excess  of  that  warranted  by  the  judg- 
ment is  void.^  In  Georgia  the  rule  that  the  execution 
must  conform  to  the  judgment  on  which  it  was  based 
is  very  inflexible,^  at  least  when  sought  to  be  applied 
to  proceedings  to  vacate  or  avoid  a  levy.  Thus  where, 
on  a  judgment  against  the  "  Water  Lot  Company  of 
the  city  of  Columbus,"  a  fieri  facias  issued  against  the 
Water  Lot  Company,  a  motion  to  dissolve  the  levy 
was  granted.*  The  decisions  in  this  state  are  doubtless 
due  to  the  peculiar  and  stringent  language  of  its  code. 
Section  3636  declares  that  "  all  executions  must  follow 
the  judgment  from  which  they  issued,  and  describe  the 
parties  as  described  in  such  judgment";  and  section 
3495  is  as  follows:  "A  fieri  facias  may  be  amended  so 
as  to  conform  to  the  judgment  from  which  it  issued, 
and  also  at  the  time  of  its  return;  but  if  such  fieri 
facias  be  levied  at  the  time  of  the  amendment,  such 
levy  must  fall;  still  the  amended  fieri  facias  may  be  re- 
executed."  Under  the  influence  of  these  sections,  it 
has  been  held  that  when  a  judgment  is  against  a  part- 
nership, an  execution  against  such  partnership,  and  also 
against  its  individual  members,  must  be  quashed,  and 

•Crittenden  v.  Leitensderfer,  35  Mo.  239.  In  this  case  the  judgtncut  re- 
cited in  the  execution  was  in  favor  of  Robert  CampUcll,  surviving  partner  of 
William  and  Robert  Campbell,  against  Eugene  Tx;itens«lorfcr,  Jacob  Uaugbton, 
Antoine  Vien,  Aaron  Bowers,  an<l  Euphrosine  Leitensdorfer,  for  ST.W'O.Tli. 
The  judgment  ofr<-Te<l  in  evidence  wa^  in  favor  of  William  and  Robert  Camiibell 
agaimft  Eugene  Leitensdorfer  ami  .Jacob  Haughton,  for  $7,C7G. 

»  Coltraine  r.  McCaine,  3  Dev.  308;  24  Am.  Dec.  25G;  Walker  r.  Marshall, 
7  Ired.  1 ;  45  Am.  Dec.  W)2. 

»  Brailley  v.  Sadler,  57  Oa.  101;  Maury  i-.  Shcpperd,  57  Ga,  C8. 

«  Bradford  v.  WaUr  Lot  Co.,  5b  Ca.  280. 


8  43  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  118 

the  levy  thercuiulor  annulUd.'     Where  a  variance  ex- 
ists between  an  execution  and  a  judgment  otfcred  in 
support  of  it,  the  safer  course  is  to  show  by  some  proof 
aliunde  that  the  former  was  in  fact  issued  to  enforce  the 
latter.     In   Texas,  when  an  execution  against  P.  B. 
Clements  and  a  judgment  against  J.  P.  Clements  were 
put  in  evidence  without  any  testimony  to  connect  them, 
the  court  refused  to  assume  that  these  two  names  were 
intended  to  designate  the  same  person,  and  therefore 
hold  that  tlie  judgment,  execution,  and  a  sale  thereunder 
were  not,  in  the  absence  of  such  evidence,  sufficient  to 
divest  the  title  of  J.  P.  Clements.^     In  this  case  the 
judgment  was  one   establishing  a  lien,  and  directing 
the  sale  of  certain  specifically  described  lands  for  its 
satisfaction.     The   execution  conformed  to  the  judg- 
ment in  date,  in  amount,  in  the  names  of  plaintiff,  and 
in  the  description  of  the  lands  to  be  sold;  and  therefore 
nothing  less  than  highly  developed  judicial  blindness 
could  have  failed,  in  the  absence  of  other  evidence,  to 
see  that  the  execution  in  question  issued  upon  the 
judgment  offered  to  support  it.     Doubtless  parol  evi- 
dence may  properly  be  received  to  show  or  explain  a 
mistake  made  in  issuing  an  execution,  and  to  establish 
the  fact  that  it  was  made  upon  a  judgment  from  which 
it  varies   in  some  particulars.*     The  chief  object   in 
describing  the  judgment  in  the  writ  is  to  refer  the 
officer  and  others  to  the  authority  under  which  he  acts, 
and  to  advise  him  what  must  be  done  to  produce  full 
satisfaction.     The  question,  as  we  have  already  inti- 
mated,  is   one    of  identity  merely;   and   if  from   the 
records,  or  from  any  other  competent  evidence,  the 

1  Clayton  v.  May,  68  Ga.  27. 

'  Battle  V.  Gncdry,  58  Tex.  111. 

•  Jeoaings  v.  Carter,  2  Wend.  4i6;  20  Aitu  Dec.  635, 


119  THE  FORM  OF  THE  ORIGINAL  EXECUTIOX.  §44 

court  is  convinced  that  the  writ  was  intended  to  be 
issued  upon  a  valid  judgment  produced  in  evidence,  it 
is  not  void,  though  it  misnames  the  judgment  creditor,^ 
or  omits  part  of  the  name  of  a  corporation  plaintiff,^  or 
transposes  the  names  of  plaintiff  and  defendant.^ 

§  44.  Designating  the  Return  Day. — Tlie  period 
within  which  the  execution  is  to  be  returned  diflers  in 
the  different  states,  being  regulated  by  local  statutes. 
At  common  law,  the  time  for  the  return  was  desi(>-nated 
in  the  writ,  and  this  practice  still  obtains  in  most,  but 
not  in  all,  of  the  states.  It  has  sometimes  been  held 
that  an  error  in  the  return  day,  or  in  other  words,  the 
designation  in  the  writ  of  a  return  day  at  a  time  differ- 
ent from  that  designated  by  law,  \vas  fatal.*  But  this 
view  is  entirely  without  the  support  of  reason,  and  is 
now  opposed  by  a  decisive  majority  of  the  reported 
adjudications  upon  this  subject.*     In  fact,  there  is  no 

>  Harlan  r.  Harlan,  14  Lea,  107. 

»  Miller  r.  Willis,  15  Ncl).  13. 

»  Mclntyrc  r.  Sanford,  9  Daly,  21. 

♦  Fifield  r.  Richardson,  34  Vt.  410;  Ex  parte  Hatch,  2  Aik.  28;  Bond  v. 
Wilder,  IG  Vt.  393;  Ticksut  v.  Cilley,  3  Vt.  415;  Jameson  v.  Paddock,  14  Vt. 
491;  West  r.  Hughes,  1  Har.  k  J.  G;  2  Am.  Dec.  539,  iu  wliich  case  in.  nturn 
day  waa  named;  Harris  r.  West,  25  Miss.  15G.  Tliia  last  case  is  irroconoilahlo 
with  tlie  later  case  of  Brown  r.  ITiomas,  2G  Miss.  335.  Tliis  rule  was  applied 
in  New  York  to  executions  issued  l>y  justices  of  the  peace  an«l  made  returuablo 
in  less  than  ninety  days,  on  the  ground  that  "it  is  well  settled  that  inferior 
and  limited  jurisdictions  must  be  conliueil  strictly  to  pursue  the  authority 
given  thorn."  Toof  f.  Bcutly,  5  Wend.  270;  J'arr  r.  Smith,  9  Wend.  338;  24 
Am.  Dec.  102. 

*  Brown  r.  Hunt,  31  Ahi.  140;  Giambera  v.  Stone,  9  Ala.  200;  Wofford  r. 
Robinson,  7  Ala.  489;  Stejthens  r.  Dennison,  1  Or.  19;  Wilson  r.  Huston,  4 
Bibb,  3.32;  Cramer  r.  Van  Alstync,  9  .Johns.  .380;  How  r.  Kane,  2  Cliatul. 
233;  rA  Am.  Dec.  152;  Campbell  r.  Cumming,  2  Burr.  1IS7;  Stone  r.  Martin, 
2  Dcnio,  185,  where  the  return  day  fell  on  Sunday;  Williams  ;•.  Rogers,  5 
Johns.  100,  overruling  Drake  f.  Milhr,  Col.  Cas.  85;  Milliurn  r.  Stiit*^-,  11  .Mo. 
188;  47  Am.  Dec.  148;  Br«)wn  7'.  Thomas,  20  Miss.  .3.35,  where  no  time  was 
fijcetl  for  tin;  return;  Wdliamn  c  Hogeboom,  8  Paige,  409.  In  this  last  case 
ChaaccUor  Walworth  itaid:  "  As  every  court  of  record  of  general  jurisdiction 


§44  THE  FORM  OP  THE  ORIGINAL  EXECUTION.  120 

mere  matter  of  form  from  which  a  departure  could  be 
of  k^ss  detriment  to  the  parties.  The  provision  for  a 
return  day  is  beneficial  mainly,  if  not  solely,  to  the 
plaintiff,  because  it  fixes  a  time  when  he  may  expect 
to  obtain  the  fruits  of  his  judgment,  by  compelling  the 
sheriff  to  have  the  writ  satisfied,  if  satisfaction  can  be 
had.  The  defendant  has  no  interest  in  the  return  day, 
for  the  writ,  as  soon  as  sued  out,  may  and  ought  to  be 
levied,  wdiether  it  be  returnable  in  ten  days  or  in  six 
months.  And  whether  the  time  for  the  return  day  be 
material  to  defendant  or  immaterial,  he  ought  not  to  be 
precluded  from  waiving  his  rights;  and  if  he  does 
waive  them,  either  in  express  terms  or  by  silent 
acquiescence,  the  waiver  ought  to  be  irrevocable.  An 
execution  issued  January  7,  1842,  was  by  mistake 
made  returnable  on  the  first  Monday  in  July,  1841.  A 
motion  against  the  sheriff  and  his  sureties  was  made  for 
not  returning  the  execution  according  to  law,  which 
motion  he  resisted,  on  the  ground  that  the  writ  was 
returnable  on  an  impossible  day.  The  court  said: 
"There  is  no  question  the  clerk  committed  a  mistal^e 
both  in  the  year  and  the  Monday  of  the  month,  in 
stating  the  time  for  the  return,  but  this  did  not  affect 

must  judge  of  the  regularity  of  its  own  proceedings,  if  the  mistake  in  the 
return  day  of  this  execution  did  not  render  the  process  actually  void,  the 
remedy  of  the  defendant,  if  he  has  any,  is  by  application  to  set  aside  the  exe- 
cution for  the  irregularity.  And  it  now  appears  to  be  fully  settled  in  this 
state,  as  well  as  in  England,  that  a  mistake  in  the  return  day  of  an  execution 
issuing  out  of  a  court  of  record  of  general  jurisdiction  is  not  void;  but  it  is  only 
voidable  upon  an  application  to  set  the  same  aside  for  irregularity.  See 
Atkinson  v.  Newton,  2  Bos.  &  P.  336;  Reddell  v.  Pateman,  1  Gale's  Exc.  Rep. 
104.  I  am  satisfied,  therefore,  that  a  neglect  to  make  an  execution  return- 
able at  the  end  of  sixty  days  from  the  receipt  thereof  by  the  sherifiF  i-enders  it 
irregular  merely;  and  that  the  execution  is  not  void,  so  as  to  make  the  attor- 
ney issuing  it,  and  the  party  in  whose  favor  it  is  issued,  trespassers;  without 
the  necessity  of  an  application  to  the  court,  to  set  aside  the  execution  for  the 
irregularity;  and  where  the  irregularity  may  be  cured  by  such  court  by  amend- 
meau" 


121  THE  FORM  OP  THE  ORIGINAL  EXECUTIOX.  8^ 

the  sherlflP,  or  make  it  less  his  duty  to  make  the  money 
and  return  the  process  according  to  law."^  An  execu- 
tion returnable  in  a  less  time  than  allowed  by  law  is 
valid,  and  may  be  executed  after  the  time  named  in  the 
writ.^  A  writ  returnable  at  a  more  distant  date  than 
sanctioned  by  statute  may  be  enforced  within  the  time 
in  which  it  might  properly  have  been  made  return- 
able.^ The  omission  of  any  part  or  of  the  whole  of  the 
clause  desiofnatino^  a  time  or  place  for  the  return  of  the 
writ  is  an  amendable  defect,  which  though  not  amended 
does  not  vitiate  the  writ  on  a  collateral  attack.* 

§  45.  Clause  of  Attestation.  —  The  execution  closed 
with  a  clause  of  attestation,  as  "  Witness,  Edward  Lord 

Ellenborough,  at  Westminster,  the day  of , 

in  the j-ear  of  our  reign."     In  the  English  court 

of  king's  bench  a  writ  o?  fieri  facias  need  only  be  sealed ; 
"  but  in  the  common  pleas,  all  executions  are  required 
to  be  signed  by  the  prothonotary,  and  must  be  so  signed 
before  they  are  sealed.'"^  Defects  in  the  clause  of  at- 
testation, unless  we  may  except  the  seal  and  signature, 
are  reo^arded  as  defects  in  matters  of  form,  and  there- 
fore  as  not  afi'ecting  the  validity  of  the  writ.^  In 
Georgia,  a  writ  was  erroneously  dated,  so  that  the  per- 
son in  whose  name  it  was  tested  was  not  the  judge  at 
the  date  of  the  teste.     This  writ  was  held  not  to  be 

1  Samples  v.  Walker,  9  Ala.  726. 
'  Kites  ?'.  I»ng,  7 1  Mo.  GO."). 

•  Y<»ungl»loii<l  r.  Cuiiniiigliani,  38  Ark.  571. 

•  Beuu.lict  k  B.  M.  Co.  v.  Tliaycr,  L'O  Hun,  547;  Walker  v.  Isaacs,  30  Hun, 
233;  DouglasH  v.  Hal.or«tro,  8S  N.  Y.  018. 

='Tiil«lH  I'rac.  mW;  liiii^liaiii  on  Juilgiiienta  and  Executionsj,  KK).  Iii  New- 
York,  an  cx<.'Ciilion  iiocd  not  contain  any  te.ste  nor  direction  to  return.  Car- 
penter V.  .Simmons,  1  Robt.  3<i0;  '28  How.  IV.  12;  Douglass  r.  Haberstro,  88 
N.  Y.  018. 

•  A  writ  tented  on  a  wrong  day  is  a  nullity  iu  New  Brunswick.  I'owcr  r. 
JohasoD,  2  Kurr,  43. 


§45  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  122 

Tokl,  ami  the  sheriff  was  not  permitted  to  avail  himself 
of  the  irregularity  as  an  excuse  for  not  serving  the  writ.^ 
At  the  eouimon  law,  a  jutlgment  was  deemed  to  be 
entered  on  the  first  day  of  the  term.  The  execution 
might  bear  teste  any  time  after  the  supposed  entry  of 
the  judgment.  "E\*ery  writ  of  execution,  in  the  case 
of  a  common  person,  must  bear  teste  in  term  time;  for 
being  the  process  of  the  court  in  which  judgment  is 
given,  the}'  have  no  authority  for  awarding  it  at  any 
other  time.  When  judgment  is  entered  up  in  vacation, 
it  relates  in  point  of  form  to  the  first  day  of  the  pre- 
ceding term,  and  execution  may  be  sued  out  on  it  by  a 
writ  tested  as  of  the  preceding  term ;  for  the  plaintiff 
having  run  through  the  whole  course  of  a  judicial  pro- 
ceeding, and  his  cause  being  ripe  for  execution,  it  would 
be  unreasonable  to  oblige  him  to  wait  till  the  ensuing 
term,  by  which  he  might  be  disappointed  of  the  eflcct 
of  his  judgment."  ^  In  the  United  States,  the  theory 
of  the  common  law,  that  the  execution  is  issued  by  the 
court  and  is  a  judicial  act,  does  not,  as  a  general  rule, 
prevail.  With  us  it  is  a  ministerial  act,  to  be  per- 
formed hy  the  clerk  of  the  court;  and  which  may  be 
performed  out  of  term  time  as  w^ell  as  within  term 
time.  We  are  therefore  under  no  necessity  of  giving 
our  writs  a  fictitious  date.  We  have  also  very  gener- 
ally abolished  the  common-law  fiction  that  a  judgment 
is  entered  at  the  commencement  of  the  term.  In  most 
of  the  states,  the  proper  date  for  the  writ  is  that  at 
which  it  was  in  fact  taken  out.'  If  the  date  is  stated 
according  to  the  year  of  the  commonwealth,  the  year 
of  Christ  may  be  omitted.*     Neither  the  misdating  of 

»  Jordan  v.  Porterfield,  19  da,.  1.39;  G3  Am.  Dec.  301. 

*  Bingham  on  Judgments  and  Executions,  sec.  187. 
'  Mollison  »'.  Eaton,  IG  Minn.  426. 

*  Craig  V.  Johnson,  Hard,  520. 


123  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §46 

a  writ  ^  nor  the  entire  omission  of  a  date  ^  invalidates  it. 
So  the  entire  clause  of  attestation  may  be  omitted 
without  rendering  the  writ  void.^  With  respect  to  the 
sio-nature  of  the  clerk  on  the  writ,  the  authorities  are 
mea<i-er  and  inharmonious.  In  North  Carolina  it  was 
assumed  that  a  justice's  execution  not  signed  by  hnn  is 
void.''  In  Ohio,  an  execution  signed  by  and  in  the 
name  of  a  deputy  clerk,  without  signing  the  name  of 
his  principal,  is  unobjectionable.^  In  Illinois,  the  sig- 
nature of  the  clerk  issuing  the  execution  is  indispensable 
to  its  validity;^  while  in  Arkansas  the  omission  of  such 
signature,  and  the  signing  in  its  stead  of  the  name  of 
another  person,  as,  for  instance,  the  name  of  the  plain- 
tiff, is  a  mere  amendable  defect,  which  does  not  justify 
the  sheriff  levying  under  the  writ  from  proceeding  to 
make  a  sale  and  return  in  due  time.^ 

§  46.  The  Seal. — The  effect  of  the  failure  to  affix 
the  seal  of  the  court  to  an  execution  is  a  subject  upon 
which  the  authorities  are  too  evenly  divided  to  war- 
rant us  in  expressing  a  very  decided  opinion.  The 
question  has  been  much  more  frequently  determined 
than  discussed  by  the  courts.  The  conclusions  on 
either  side  have  been  announced  with  a  curtness  and 
d(jgmatism  that  disdained  argument  and  explanation, 
and  cared  neither  to  deal  with  logic  nor  delve  for 
precedents.  On  the  one  side,  the  theory  seems  to  be 
that  before   the   seal   is  affixed  there  can  be  no  writ; 

»  Norm  V.  Sullivan,  47  Conii.  474,  where  a  writ  issued  July  29th  was  dated 
June  10th. 

*  U.sry  r.  a-iulshury,  f)2  Ga.  179. 

»  Pcoplo  v.  Vaii  H(M.-8en,  02  Hew.  Tr.  7C;  Douglass  v.  Habcrstro,  88 N.  Y.  611. 

*  HugKin»  V.  Ketcliuiii,  4  Dcv.  &.  B.  414. 

*  Chapin  »•.  AUiNoii,  l.j  Oliio,  500. 

*  Hernaii.lcz  »•.  Drake,  81  III.  34. 
'  Jutt  r.  .Shiun,  47  Ark.  :J73. 


§46  THE  FORM   OF  THE  ORIGINAL  EXECUTION.  124 

that  without  tho  seal  there  can  be  no  legal  command 
to  execute  the  judgment  of  the  court;  that  an  officer, 
acting  in  tlie  absence  of  tlie  seal,  acts  in  the  absence 
€^f    tlie    writ,  and   that,  so  acting,  whatever  he    does 
is  unjuistiliable    and    void.^     On  the  other  side,  it  is 
assumed  that  the  omission  of  the  seal  is  the  omission 
of  a  matter  oi'  form  rather  than  of  substance;  that  it 
can  be  corrected  by  amendment,  on  application  to  the 
court;  and  tliat,  being  an  amendable  error,  it  cannot 
utterly  avoid  the  writ.     This  view  seems  to  us  entitled 
to  favorable  consideration,  and  to  be  constantly  gaining 
ground.     Of  all  the  different  parts  of  the  writ,  this  is 
most  purel}^  a  mere  matter  of  form,   and  its  omission 
the  least  likely  to  prejudice  either  of  the  parties,  or  to 
mislead  the  officer  in  executing  the  writ.     Without  it 
there  is  certainly  enough  to  indicate  the  judgment  to 
be  enforced,  and  that  the  command  for  its  enforcement 
proceeds  from   competent  authority,  and  a  writ  indi- 
cating this,   and  in  fact   issued  by  the  clerk  of   the 
court,    ought   to  be  treated   as   valid,    at   least   until 
objected  to  by  some  proceeding  to  set  it  aside.^    When, 
after  the  lapse  of  a  long  period,  a  wTit  is  offered  in 
evidence,  a  very  slight  and  indistinct  impression  will 
be  presumed  to  have  been  made  by  a  seal.^ 

•Insurance  Co.  v.  Ilallock,  6  Wall.  556;  Boal  v.  King,  6  Ohio,  11; 
Swett  V.  Patrick,  2  Fairf.  177;  Hutcliins  v.  Edaon,  1  N.  H.  139;  Shackleford 
V.  MoRea,  3  Hawks,  220;  ScawoU  r.  Bank  of  Cape  Fear,  3  Dev.  279;  22 
Am.  Dec.  722;  Taylor  v.  Taylor,  83  N.  C.  IIC;  Roseman  v.  Miller,  84  111. 
297. 

»  Rnse  V.  Ingram,  98  Ind.  27G;  Hunter  v.  Burnsville  T.  Co.,  5G  Ind.  213; 
Bridewell  v.  Moouey,  25  Ark.  524;  Taylor  v.  Courtnay,  15  Neb.  190;  Dever  v. 
Akin,  4t)  Ga.  429;  Corwith  v.  Bank  of  Illinois,  18  Wis.  560;  80  Am.  Dec.  793; 
Sabinr.  Au.nin,  19  Wis.  421;  People  v.  Dunning,  1  Wend.  10;  Douiinick  r. 
Eacker,  3  Barb.  17;  Arnold  v.  Nye,  23  Mich.  280;  Sawyer  v.  Baker,  3  Greenl. 
29;  Purcell  v.  McFarland,  1  Ired.  34;  35  Am.  Dec.  734. 

*  Heighway  v.  Pendleton,  15  Ohio,  755. 


125  THE  FORM  OF  THE  ORIGEN'AL  EXECUTIOX.      §47,  47  a 

§  47.  A  Material  Alteration  in  a  writ,  made  by 
plaintiff  after  its  issue,  witliout  leave  of  the  court,  will, 
DO  doubt,  make  the  writ  void  as  against  the  plaintiff 
and  all  others  havinoj  notice  of  the  unauthorized  altera- 
tion,^  The  alteration  of  an  original  into  an  alias  writ 
is  said  to  make  it  void;-  but  this  rule  will  not  be 
allowed  to  so  operate  as  to  destroy  the  protection  due 
to  a  sherifi'  or  constable  to  whom  the  writ  was  deliv- 
ered for  execution.^  If  an  execution  shows  that  cer- 
tain words  have  been  erased  and  others  inserted  in 
their  place,  and  the  evidence  fails  to  disclose  the  time 
at  which  such  erasures  and  insertions  were  made,  the 
presumption  against  fraud  is  applicable,  and  the  court 
will  proceed  on  the  assumption  that  the  apparent  alter- 
ation was  innocently  made,  prior  to  the  issuing  of  the 
writ,* 

§47  a.  Forms  of  Executions  on  Decrees. — Writs 
issued  in  chancer}''  for  the  purpose  of  enforcing  its 
decrees  were  in  the  name  of  the  reiofniuGf  monarch  if 
in  England,  and  of  the  President  of  the  United  States, 
if  in  this  country,  and  were  directed  to  the  person  or 
persons  who  were  therein  commanded  to  do  some  act, 
either  in  the  performance  of  the  decree  on  their  part, 
or  looking  towards  the  coercion  of  others  to  its  per- 
formance. If  the  writ  was  an  injunction  or  a  writ  of 
execution,  it  was  directed  to  the  defendants.  If  it  was 
an  attachment,  it  was  directed  to  the  sheriff.  If  it 
was  a  writ  of  sequestration,  it  was  directed  to  the  per- 
sons who  had  been  chosen  as  sequestrators.      In  either 

'  Trigg  r.  Rom,  35  Mo.  165;  People  w.  Lamborn,  I  Scam.  123;  White  v. 
JonM.  as  111.  159. 

'  JcihiiKon  r.  WinBlow,  Kerr,  53. 

»  Fari.H  r.  State,  3  Ohio  St.  l.')9. 

*  Fin»t  Nat.  Bauk  r.  Franklin,  '20  Ivan.  '204. 


§47  a  THE  FORM  OP  THE  ORIGINAL  EXECUTION.  126 

case,  it  enjoined  tlie  person  or  persons  to  whom  it  wa3 
directed  to  perform  and  fulfill  the  matters  and  things 
whieh  had  been  decreed  to  be  done,  or  else  to  do  cer- 
tain acts  which  might  produce  the  satisfixction  of  the 
decree,  either  through  seizing,  fining,  or  imprisoning 
the  defendant,  or  taking  possession  of  his  property 
and  appropriating  the  proceeds  or  income  thereof.  At 
the  present  time,  decrees  for  the  payment  of  specific 
sums  of  money  are  enforced  by  writs  of  fieri  facias 
having  the  same  effect,  and  we  presume  substantially 
in  the  same  form,  as  writs  of  like  character  issued  upon 
judgments  at  law.  If  the  decree  commanded  the  sale 
of  specific  property,  as  where  it  foreclosed  a  mortgage 
or  other  lien,  or  authorized  the  sale  of  property  over 
which  the  court  had  assumed  jurisdiction,  and  of  which 
it  liad  taken  possession  by  its  receiver  or  other  officer, 
we  are  unable  to  discover  that  any  other  authority  was, 
b}^  the  English  chancery  practice,  required  to  warrant 
the  action  of  the  officer  or  other  person  authorized  to 
make  the  sale  than  such  decree  itself.  In  California, 
however,  it  has  been  held  that  the  entry  of  a  decree  of 
foreclosure  will  not  alone  authorize  the  sheriff"  to  make 
sale  of  the  property  as  therein  directed;  that  his  action 
must  be  based  on  something  equivalent  to  an  execution; 
and  that  this  something  may  consist  either  of  a  formal 
order  of  sale  issued  by  the  clerk,  or  of  a  copy  of  the 
decree  certified  by  him.^ 

The  following  is  the  form  of  Jieri  facias  given  in  Binghani^n  Judgments  and 
Executions:  — 
George  the  Third,  etc. 

To  the  Sheriff  of  Greeting:    We  command  you,  that  of  the  goods  and 

chattels  of  C  D,  in  your  bailiwick,  you  cause  to  be  made  £  which  A  B, 

lately  in  our  court  before  us  at  Westminster,  recovered  against  him  for  his 

*  Heyman  r.  Babcock,  30  Cal.  3G7.    See  also  Farmers'  &  M.  Bank  v.  Luther, 
14  Wia.  9G;  Rhouemus  v.  Corwin,  9  Ohio  St.  3G6. 


127  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §47  a 

damages  which  he  had  sustained,  as  well  on  occasion  of  the  not  performing 
certain  promises  and  undertakings,  then  lately  made  by  the  said  C  D  to  the 
said  A  B,  as  for  his  costs  and  charges  by  him  about  his  suit  in  that  behalf  ex- 
pended; whereof  the  said  C  D  is  convicted,  as  appears  to  us  of  record;  and 
have  that  money  before  us,  at  Westminster,  on  next  after  to  render 

to  said  A  B  for  his  damages  aforesaid;  and  have  there  then  this  \vrit.  Witness 
Edward,  Lord  Ellenborough,  at   Westminster,   the  day  of  in  the 

year  of  our  reign. 

If  the  judgment  were  in  favor  of  two  or  more  plaintiffs,  and  against 
two  or  more  defendants,  and  one  of  the  plaintiffs  and  one  of  the  defend- 
ants had  died  since  its  rendition,  then  the  foregoing  form,  after  the 
direction  to  the  sheriff,  might  read  as  follows:  "We  command  you, 
that  of  the  goods  and  chattels  of  G  H  and  J  K,  in  your  bailiwick, 
you  cause  to  be  nia<le  £  ,  which  A  B,  C  D,  and  E  F,  in  the  lifetima 

of  E  F,  now  deceased,  and  whom  the  said  A  B  and  C  D  have  survived, 
lately  in  our  court  before  us  at  Westminster,  recovered  against  them,  the  said 
G  H  and  J  K,  and  one  L  M,  in  his  lifetime,  now  deceased,  and  whom  the  said 
G  H  an«l  J  K  liave  survived,  for  their  damages  which  they  had  sustained,  as 
well  on  occasion  of  the  not  performing  certain  promises  and  undertakings, 
then  lately  made  by  the  said  G  H,  J  K,  and  L  M,  to  the  said  A  B,  C  D,  and 
E  F,  as  for  their  costs  and  charges  by  them  about  this  suit  in  that  behalf  ex- 
pended, whereby  said  G  H,  J  K,  and  L  M  arc  convicted  "  (proceeding  from  this 
point  in  the  same  as  in  the  first  form). 

If  a  sole  plaintiff  had  died,  a  fieri  facias  in  favor  of  his  executor  or  admin- 
istrator, read  as  dhown  in  the  first  form  down  to  and  including  the  clause, 
"appears  to  ua  of  record,"  after  which  was  inserted  the  following:  "And 
wliereupou  it  is  considered  in  our  said  court  before  us  that  E  F,  executor  of 
the  last  will  and  testament  of  said  A  B,  deceased  (or  administrator  of  all  and 
singular  the  goods,  chattels,  and  credits,  which  were  of  said  A  B,  deceased,  at 
tlie  tim3  of  his  death,  who  died  intestate),  have  execution  against  the  said  C  D 
for  the  damages  aforesaid,  according  to  the  force,  form,  and  effect  of  said  re- 
covery by  the  default  of  said  C  D,  as  also  appears  to  us  of  record." 

If  a  sole  defendant  had  died,  tlie  form  after  the  words  "CD"  was  varied  so 
as  to  read,  "decea.icd,  at  the  time  of  his  death,  in  the  nandsof  E  F,  executor," 
etc.  (or  administrator,  etc.),  to  be  administered,  in  your  bailiwick,  you  cause 
to  be  made  £  which  A  B,  lately  in  our  court,  etc.,  etc.  And  whereupon  it 
is  considered  in  our  said  court,  before  us  at  Westminster  aforesaid,  tliat  the 
said  A  B  have  his  execution  ai^'ainst  the  said  IC  F,  as  extjcutor  (or  administrator), 
a-i  aforesaid,  of  the  dair.ages  aforesaid,  of  the  goods  and  chattels  which  were 
of  the  aaiil  C  I>  at  the  time  of  Ida  death,  in  the  hands  of  sai.l  E  F,  as  execu- 
tor (or  administrator),  as  aforesaid,  to  l>o  administered  according  to  the  form 
and  effect  of  said  recovery;  and  have  that  money,  etc.  (as  in  the  first  form). 

In  California,  where  an  execution  may  be  directed  agoinst  the  lands  as  well  as 
the  chattclx  of  tl»o  defendant,  it  may  be  in  the  following  form  (see  Code  Civ. 
Prrw.  of  Cal..  sec.  082):  — 
TLo  Peopl*-  of  tlio  State  of  California. 

To  tiie  Sheriff  of  the  C<.unty  of  Greeting:    AVlicreas,  on  the  day 

of  18—,  A  B,  plaintiff,  recovered  judgment  in  the  superior  court  of  tlie 


§47  a  THE  FORM   OF  THE  ORIGINAL  EXECUTION.  128 

county  of  in  aaiil  state,  against  C  D,  dcfonclant,  for  >?  ami  $ 

costs  of  suit,  ami  the  juilgiiiout  roll  is  on  file  in  saiil  county;  ami  wlicrcaa  the. 

8UU1  of  $  i;J  now  actually  iluc  on  such  judgment,  — 

Now,  tluMvfiirc,  you  are  rtuiuiroil  to  satisfy  said  jmlgmont,  Mnlh  interest, 
out  of  the  pcrsoual  property  of  tlio  said  C  D,  or  if  suiricient  per^^oual  property 
©f  said  C  n  cannot  1>j  found,  tlieu  o\it  of  the  real  property  to  him  belonging, 
on  tlie  day  wlien  said  judgment  was  docketed,  or  at  any  time  thereafter, 
and  make  return  of  tliis  writ  within  days  after  your  receipt  thereof. 

Witness  my  hand  and  the  seiil  of  said  court  this  day  of  A.  D. 

IS—. 

[suvL  OF  COURT.]  E  F,  Clcrk  of  said  Court, 

By  C  D,  Deputy. 

The  ue.\t  two  forms  are  those  in  use  in  the  circuit  and  district  courts  of  the 
United  States  for  the  district  of  California. 
United  States  of  America. 

The  President  of  the  United  States  of  America,  to  the  ^Marshal  of  the  Dis- 
trict of  California,  Greeting:  You  are  hereby  commanded  that  of  the  goods 
and  chattels  of  in  your  district,  you  cause  to  be  made  the  sum  of 

dollars  to  satisfy  a  lately  rendered  in  the  circuit  court  of  the  United 

States,    for  the   district  of    California,  against  for   the   damages  wliich 

had  sustained  as  well  by  reason  of  as  for  the  costs  and  charges  in 

and  about  that  suit  expended,  whereof  the  said  convicted  as  appears  of 

record.     And  if  suiheient  goods  and  chattels  of  the  said  cannot  be  found 

within  your  district,  that  then  you  cause  the  amount  of  the  said  to  bo 

nade  of  the  real  estate,  lands,  and  tenements  whereof  the  said  seised  on 

the  said  day  of  A.  D.  188-,  or  at  any  time  afterwards,  in  whose 

hands  soever  the  same  may  be,  and  have  you  that  money,  together  with  this 
writ,  with  your  doings  thereon,  before  the  judges  of  said  circuit  court,  at  the 
court-house  thereof,  in  the  city  and  county  of  San  Francisco,  district  of  Cali- 
fornia, on  the  day  of  A.  D.  18S-,  to  satisfy  the  so  rendered  as 
aforesaid. 

Witness  the  honorable  Morrison  R.  Waite,  chief  justice  of  tlic  supreme 
court  of  the  United  States  of  America,  this  day  of  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and  and  of  our   Independence 

the 

Attest  my  hand  and  the  »eal  of  said  circuit  court  the  day  and  year  last 
above  written.  Clerk, 

By  Deputy  Clerk. 

District  of  California,  us. 

The  President  of  the  United  States  of  America,  to  the  Marshal  of  the  Dis- 
trict of  California,  Greeting:  Wliereas,  a  was  filed  in  the  district  court 
of  the  United  States  for  the  dintrict  of  California,  on  the  day  of 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  by  ami 
•uch  proceedings  were  thereupon  ha<l,  that  by  the  judgment  and  decree  of 
said  court  in  the  said  cause  entered  on  the  day  of  18 — ,  tlie  said 
required  to  pay  to  the  said  the  sum  of  besides  costs  in 
this  suit  to  \ic  ta.xed,  and  execution  w;is  ordered  therefor;  and  whereas,  the 
Mad  costs  have  Itcen  duly  taxed  at  the  sum  of  as  by  the  record;!  and  lilcs 
of  said  court  fully  apijcar,  — 


129  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §47  a 

Xow,  therefore,  wc  command  yoii,  that  of  the  goods  and  cha+tels  of  the 
said  in  your  district,  and  in  default  of  goods  and  chattels  of  then 

of  the  lands  and  tenements  in  your  district  of  which  seised,  oa  the  day 

you  shall  receive  this  writ,  or  at  any  time  afterwards,  }'ou  cause  to  be  made 
the  snm  of  and  further,  that  you  have  those  moneys  in  said  court,  at  the 

court-house  in  the  city  of  San  Francisco,  on  or  before  the  daj'  of 

A.  D.  18 — ,  to  render  to  the  said  in  satisfaction  of  said  judgment  and  de- 

cree; and  that  you  duly  return  to  the  said  court  what  you  shall  do  in  the 
premises,  together  with  this  writ. 

Witness  the  honorable  Ogden  Hoffman,  judge  of  the  said  court,  at  the  city 
of  San  Francisco,  in  the  district  of  California,   this  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and  eighty-  and  of  our 

Independence  the  one  hundred 

Clerk. 
Writ  of  Execution  in  Chancery. 

George  the  Third,  by  the  grace  of  God,  of  Great  Britiiin,  France  and  Ireland 
King,  Defender  of  the  Faith,  and  so  forth,  to  A  B  and  C  I).  Greeting:  — 
Whereas,  by  certain  final  judgment  or  decree,  lately  made  before  us  in  our 
conrt  of  chancery,  in  a  certain  cause  there  depending,  wherein  E  F  is  com- 
plainant, and  you,  the  said  A  B  and  C  D,  are  defendants:  It  is  ordered  and 
decreed  that  (here  insert  the  things  ordered  to  be  done  in  the  decree),  as  by 
said  decree  duly  enrolled,  and  remaining  aa  of  record,  in  our  said  court  of 
chancery,  doth  and  may  fully  appear,  — 

Therefore,  we  strictly  enjoin  and  command  you,  the  said  A  B  and  C  D, 
that  you  do  severally  pay,  perform,  fultill,  and  execute  all  and  every  tho 
moneys,  matters,  and  tilings  specitied  in  the  said  final  judgment  or  decree,  in 
all  things  so  far  as  the  same  any  way  relates  to  or  concerns  you  re.-^pectivcly, 
according  to  the  true  meaning  and  import  of  the  said  decree,  and  of  these 
presents,  and  hereof  fail  not,  at  your  peril.  Witness  ourselves  at  \Vestmiii8ter 
the  day  of  and  in  the  year  of  our  reign. 

Writ  of  Attachment  in  Chancery. 
George  the  Third,  etc. 

To  tho  Sheriff  of  Greeting:   We  command  you  to  attach  A  B  so  as 

to  have  him  before  us  in  our  court  of  chancery,  wheresoever  the  said  conrt 
Mhall  then  l»e,  there  to  answer  to  us,  as  well  touching  a  contempt  which  he,  as 
is  alleged,  hath  committed  against  us,  as  also  such  other  matters  a.i  shall  then 
bo  laid  to  his  charge;  and  furtlier,  to  abide  sucli  order  as  our  said  court  shall 
make  in  his  W-half;  and  lierrof  fail  not,  and  bring  tliis  writ  witli  you. 

WitncHs  ourselves  at  Westiniuster,  tho  day  of  in  tho  year 

of  our  reign. 

Diitrinytia  njaintt  a  Corporation. 
(icoTKO  tho  Tliird,  etc. 

To   tho  Sheriff  i»f    the  County  of  Greeting:    Wc  command  you  that 

you  make  a  distrcM  upon  tho  lamU  and  toneinunt«,  goo<1sand  chattels,  of  (hero 
name  the  corporation),  within  your  bailiwick,  ho  as  neither  tho  said  nor 

any  other  |K;riuin  or  j»crsoni«  for  them,  may  lay  his  or  their  Imn'ls  lliorcou  until 
our  court  of  ch.'uicery  nliall   nutko  other  order  tlie  contrary;  and  in  the  mean 
time  you  .are  t<i  atuwer  to  us  for  the  oaid  guoda  and  chattc-ls,  rents  and  pruiita 
Vol.  I. -9 


§47  a  THE  FORM   OF  THE  ORIGINAL  EXECUTION.  130 

of  the  saiil  lauils,  so  that  tho  saitl  may  bo  compolled  to  appear  before  us  in 

oursaitl  ooiirt  of  chaiKory,  whorosoevcr  it  thon  shall  ho,  tluro  to  answer  to  us  as 
well  touehing  a  eontoiiipt  whieh  they,  it  is  allegoil,  have  committed  against  us, 
as  also  sueh  other  matters  as  shall  ho  then  and  there  laid  to  their  ehargo;  ami 
further  to  perform  aud  ahido  such  order  as  our  said  court  shall  make  in  this 
behalf;  aud  herein  fail  not,  and  bring  this  writ  with  you. 

Witness,  etc.,  etc. 

Wril  qf  Sequestration. 
George  the  Third,  etc. 

To  A  B,  C  D,  E  F,  etc. :  Whereas,  etc.  (here  the  occasion  of  tho  issuing 
of  the  ^\Tit  was  recited,  showing  the  suit  and  the  act  which  defendant  had 
failed  to  perform,  etc.). 

Know  ye,  therefore,  that  we,  in  consideration  of  your  prudence  and  fidelity, 
have  given,  and  by  these  presents  do  give  to  you,  .any  tlirce  or  two  of  you,  full 
power  and  authority  to  enter  upon  all  the  messuages,  lands,  tenements,  and 
real  estate  whatsoever,  of  tiie  said  I  J,  and  to  take,  collect,  receive,  and 
sequester  into  your  hands,  not  only  the  rents  and  profits  of  the  said  messuages, 
lauds,  tenements,  and  real  estate,  but  also  all  his  goods,  chattels,  and  personal 
estate  whatsoever;  and  therefore,  we  command  you,  any  three  or  two  of  you, 
that  you  do,  at  certain  proper  and  convenient  days  and  hours,  go  to  and  enter 
upon  all  the  messuages,  lands,  tenements,  and  real  estate  of  the  said  I  J;  and 
that  you  do  collect,  take,  and  get  into  your  hands,  not  only  all  the  rents  and 
profits  of  all  his  real  estate,  but  also  all  his  goods,  chattels,  and  personal  estate, 
and  keep  the  same  under  sequestration,  in  your  hands,  imtil  the  said  I  J  shall 
fully  answer  the  complainant's  bill  and  clear  his  contempts,  and  our  said  court 
make  other  orders  to  the  contrary. 

Witness  ourself  at  Westminster,  the  day  of  in  the  year 

of  our  reign. 


131  ISSUING  ALIAS  AND  PLURIES  WKITS.  §§  48,  49 


CHAPTER   IV. 

ISSUING  ALIAS  AND  PLURIES   WRITS. 

§  48.  Classiiication  of  cases  in  which  may  issue. 

§  49.  The  former  writ  ought  to  be  returned. 

§  50.  The  levy  under  the  former  writ  must  be  disposed  of. 

§  51.  May  issue  after  year  and  a  day  ^T^tllout  scire  facias. 

%  52.  When  may  issue  without  return  of  former  writ. 

§  53.  Issued,  when  judgment  was  satisfied,  fraudulently  or  by  mistake. 

§  54.  After  sale  under  void  writ,  or  where  defendant  had  no  title. 

§  55.  Form  of,  and  consequence  of  errors  in. 

§  56.  Notice  to  obtain. 

g  48.  Classification  of  Cases  in  Which  an  Alias 
Writ  may  Issue. —  The  plaiutiil'  is  not  limited  to  his 
original  or  first  writ  of  execution,  but  may  call  to  lus 
aid  such  further  writs  as  may  be  necessary  to  enable 
him  to  obtain  a  full  satisfaction  of  his  demand.  The 
second  writ  is  usually  called  an  alias,  and  writs  issued 
subsequently  to  the  alias  are  plurics  UTits.  An  alias 
OT  plurics  may  usually  be  issued  as  of  course,  without 
leave  of  the  court,  but  there  are  circumstances  in  which 
it  is  first  neccs.sary  to  obtain  such  leave.  An  alias  or 
2jlurics  writ  is  proper,  —  1.  When  the  preceding  writ  has 
been  returned  un.satisfied  in  whoh;  or  in  part;  2.  When 
the  preceding  wiit  ]ias  not  been  returned,  and  a  suffi- 
cient reason  exists  for  the  issuing  of  another  writ  with- 
out roquirinur  a  return  of  the  former ;  n.  Where  a  former 
writ  has  been  returned  .satisfied,  wlien  ik)  sati.siaction  has 
in  fact  been  made.  In  the  first  case  the  writ  may  issue 
as  of  course;  but  in  the  last  two  cases  there  is  usually 
a  necessity  for  obtaining  an  order  of  court. 

§  49.     Necessary  that  Former  Writ  shall  be  Re- 
turned.—  it  is  obvious  that  to  allow  plaintiiF  succes- 


§49  ISSUING   ALIAS  AND  TLURIES  WRITS.  132 

sive  writs  of  execution  to  the  same  county,  without 
requiring  hun  to  give  any  account  of  liis  proceedings 
under  former  writs,  would  be  likely  to  lead  to  great 
confusion  and  abuse  in  tlie  execution  of  process.  As 
between  diflcrcnt  kinds  of  writs,  it  is  clear  that  plain- 
tift*  may  at  the  common  law  sue  out  one  kind  without 
returning  another.  Hence  a  plaintiiF  having  taken  a 
fieri  facias  may  issue  a  ca.  sa.,  even  where  an  attempted 
levy  has  been  made  under  the  former,  but  abandcmcd 
because  the  property  had  been  previously  seized  under 
other  process,  or  is  from  any  other  cause  no  longer  lia- 
ble to  seizure.^  But  if  the  levy  be  consummated,  there 
must  be  a  return  of  the  fieri  facias  before  the  ca.  sa.  can 
issue,  although  the  levy  was  abandoned  or  proved  un- 
productive.^ In  some  of  the  United  States  the  plain- 
tiflf  is  by  statute  allov/ed  at  liis  own  cost  to  take  out 
a  second  execution  without  returning  the  first.^  But 
where  no  statute  has  interposed  to  change  the  rule  of 
the  common  lav\^,  it  is  clear,  in  this  country  as  well  as 
in  England,  that  no  execution  can  regularly  issue  if 
any  attempt  has  been  made  to  execute  a  fomier  writ 
to  which  no  return  has  been  made.^     The  rule  proba- 

*  Dicas  V.  Warner,  3  Moore  &  S.  814;  10  Biug.  341;  Steele  v.  Murray,  1 
Black  f.  179;  Edmoiul  r.  Ross,  9  Price,  5. 

^  Hudson  V.  Dangcrfield,  2  La.  GO;  20  Am.  Dec,  297;  Miller  v.  Parncll,  6 
Taunt.  370;  2  Marsh.  78;  Dennis c.  Wells,  Cro.  Ellz.  314;  Lawes  v.  Codrington, 
1  Dowl.  P.  C.  30;  Turner  v.  Walker,  2  Gill  &  J.  377;  22  Am.  Dec.  329;  Wil- 
son V.  Kingston,  2  Chit.  203:  Scott  v.  Hill,  2  Murph.  143;  Arnold  v.  Fuller,  1 
Ohio,  458;  Purdon  v.  Purdon,  2  Miles,  173. 

»  Webb  r.  Bumpass,  9  Port.  201;  33  Am.  Dec.  310;  Fryer  v.  Dennis,  3  Ala. 
254;  Hopkins  v.  Laud,  4  Ala.  427;  Windrum  ?•.  Parker,  2  Leigh,  3G1. 

♦  Allen  V.  Johnson,  4  J.  J.  Marsh.  235;  Gist  v.  Wilson,  2  Watts,  30;  Ciip- 
ston  V.  Field,  3  Wend.  382;  Marshall  v.  Moore,  36  111.  .321;  Rabeock  v.  Mc- 
Camant,  53  III.  215;  Dorland  v.  Dorland,  5  Cow.  417;  Ledyard  v.  Buckle,  5 
Hdl,  571;  Corning?'.  Burdick,  4  McLean,  1.33;  McMurrich  v.  Thompson,  1  U. 
C.  P.  R.  258;  Cairns  v.  Smith,  8  Johns.  337;  Chapman  i".  BowUty,  8  Mees.  & 
W.  248;  1  Dowl.,  N.  S.,  83;  Coppcndale  v.  iJebonaire,  Barnes,  213;  but  see 
Green  v.  Elgie,  3  Barn.  &  Adol.  437 ;  Frauklin  v.  Hodgkin.son,  3  Dowl.  &  L.  5.54 ;  1 0 
Jut.  249;  15  L.  J.  Q.  B.  132;  Chapman  v.  Dyett,  11  Wend.  31;  25  Am.  Dec.  598. 


133  ISSUING  ALIAS  AND  PLURIES  WRITS.  §49 

bly  goes  further  when  the  second  writ  is  of  the  same 
nature  as  the  first,  and  prohibits  the  issuing  without 
leave  of  the  court  of  any  alias  or  pluries  execution 
while  the  f  :>rmer  writ  is  unreturned,  no  matter  whether 
a  levy  has  been  made  or  not;^  and  to  support  this  pro- 
hibition, it  has  been  maintained  that,  after  the  issuing 
of  execution,  a  presumption  arises  and  continues  till 
rebutted  by  the  officer  s  return  that  the  judgment  has 
been  satisfied  bj^  levy  on  sufficient  goods.^  An  alias 
may  properlj^  issue  after  the  return  of  the  original 
writ,  though  such  return  was  made  before  the  return 
day.^  The  right  to  an  execution  continues,  notwith- 
standincT  the  loss  or  destruction  of  the  record/  Plence 
such  loss  or  destruction  constitutes  no  valid  objection 
to  the  issiiinor  of  an  alias  writ.^  The  issuing:  of  a  sec- 
ond  writ  before  the  return  of  the  first  is  a  mere  irres^u- 
larit3\  The  writ  is  not  void.^  If  the  plaintiff  purchases 
thereunder,  tlie  sale  may  be  vacated,  unless  the  defend- 
ant has  in  some  mode  waived  the  irregularity/  Such 
waiver  is  implied  when,  having  notice  of  the  existence 
of  both  writs,  he  permits  a  sale  of  realty  to  be  made 
under  the  second  writ,  allows  the  time  for  redemption 
t<)  expire,  and  surrenders  possession  before  attempting 
to  urge  the  objection  that  there  were  two  writs  in  exist- 

'  Waters  ».  Caton,  1  liar.  &  Mcil.  407;  Corning  v.  Burditk,  4  McLean,  133; 
Oviat  r.Vynor,  Salk.  318;  Cutler  r.  Colvcr,  3  Cow.  30.  ])ut  in  McNair  r. 
Ragl.in.l,  '2  Ucv.  Ivj.  42;  22  Aui.  Dec.  728,  it  is  said  that  a  plaintitf  may  sxio 
out  ."u  many  writH  of  execution  as  ho  i)leasc8.  /I /i<w  writs  of  execution  may 
Uiuc  ill  Minuosota,  notwithHttin»liug  the  stalute  of  that  btatu  providing  for  the 
renewal  of  executions.     Walter  v.  <  Jreenwood,  29  Minn.  87. 

*  Birtliop  V.  iSi<ruancc,  4  Harr.  (Del.)  114. 

*  PenningUm  r.  Yell,  11  Ark.  212;  52  Am.  Dec.  2G2. 

*  FaUHt  r.  KcholH,  4  Col. I.  397. 

»  aiiidrcai  V.  Markn.  2  Baxt.  12. 

*  AtwcKxl  r.  BoarH,  4.'>  Mich.  4G9;  Maco  v.  Dntton,  2  Ind.  309;  52  Am.  Dec. 
610;  SUto  r.  I'ai'e,  I  .S[.<jarH,  40S;  40  Am.  Dec.  008. 

*  Morritt  r.  Urovor,  57  low»,  493. 


§-.0  ISSUING  ALIAS   AND  I'LURIKS  WRITS.  134 

oiK'o  at  tlio  samo  time/  In  (li-ornia  it  sci'ins  that  an 
alias  oaiinot  Dnliniirily  issue,  and  that  even  when  tlio 
original  writ  lias  l)een  lost  or  destroyed  i\\v  proper 
mode  of  proeeeding  is  to  establish  a  eopy  of  sueh  origi- 
nal. }[',  however,  an  alias  is  in  sueh  ease  improperly 
awariled.  the  proceedings  thereunder  are  treated  as 
vahil.-  AVhere  tlie  statute  ha^  provided  for  certain 
proceedings  to  renew  executions,  a  defendant  who  be- 
ing duly  notified  of  sueh  proceeding  i'ails  to  make  the 
objectit)n  that  there  is  a  prior  writ  which  has  never 
been  returned  is  precluded  from  urging  such  objection 
thereafter.' 

§  50.  There  must  be  No  Ontstanding  Levy-  —  If  a 
writ  has  been  issued  and  its  execution  commenced,  it 
must  tirst  be  completed  before  a  new  writ  can  issue.* 
This  rule  applies  equally  whether  the  old  writ  has  been 
returned  or  not.  A  levy  upon  personal  property  is,  to 
the  extent  of  the  levy,  a  satisfaction  of  the  judgment. 
Therefore  if  the  return  shows  that  property  has  been 
levied  under  the  writ,  and  has  not  been  released  nor  sold, 
it  cannot  be  known  to  what  extent  the  writ  is  satisfied, 
nor  for  what  amount  the  alias  should  issue.  The  proper 
proceeding  in  such  case  is  to  ismio  a  writ  of  venditioni 
exponas,  by  which  the  property  seized  may  be  sold." 
After  a  levy  is  made  the  plaintiff  has  no  right  to  wan- 
tonly abandon  it ;  and  if  he  does  so,  and  procures  the 
issuing  of  an  alias  writ,  or  if,  under  any  circumstances, 

>  Mcrritt  r.  Crovcr,  Gl  Iowa,  99.  Section  3025  of  the  code  of  that  state  de- 
clarer that  "but  oiio  execution  shall  he  iu  exi»teuce  at  tlie  same  time." 

»  Ruahin  r.  Shields,  1 1  Ga.  G3G;  5G  Aui.  Uoo.  4r,G;  Kellogg  v.  Buckler,  17 
Ga.  187. 

»Bullf.  Rowc.  13  S.  C.  355. 

♦  Downard  r.  Crenahaw,  49  lowa,  296. 

*  Babcock  r.  McCamant,  5a  111.  J II;  Freeman  v.  Brown,  7  T.  B.  Men,  2C2. 


135  ISSUING  ALIAS  AXD  PLURIES  WRITS.  §51 

an  alias  issues  while  a  levy  under  a  prior  writ  remains 
undisposed  of,  such  alias  may  be  quashed.^  The  issu- 
ing' of  an  alias  instead  of  a  venditioni  exponas  is  an 
irregularity  rather  than  a  nullity ;  and  long  delay  on 
the  part  of  the  defendant  will  estop  him  from  urging 
such  irregularity." 

?  51.  May  Issue  after  Year  and  a  Day  without  Scire 
Facias.  —  The  j)rovisi(>iis  o(  the  conniioii  law,  that  exe- 
cution may  issue  within  a  year  and  a  day  after  judg- 
ment, and  provisions  of  a  like  nature  in  the  statutes  of 
the  various  states  of  these  United  States,  have  no  ap- 
plication to  alias  and  plnries  writs.  In  some  of  the  states 
the  time  within  which  these  writs  ma}'  ho  sued  out  is 
limited  by  statute.  But  in  the  absence  of  statutory 
regulation  to  the  contrary,  if  an  original  execution  is 
i.ssued  within  the  time  prescribed  by  law,  and  is  there- 
after returned  uns;itislied,  it  is  no  longer  necessary  as 
between  the  original  parties  to  revive  the  judgment  by 
scire  facias.  An  alias  writ  may  issue  at  an}-  time  sub- 
sequent to  such  return,  and  wliile  the  judgment  remains 
in  force.^  It  has  even  been  held  that  this  rule  could 
be  involved  when  the  original  writ,  though  issued  by 

>  Trapnall  r.  Richardfwn,  13  Ark.  543;  58  Am.  Doc.  3:kS;  Mclver  r.  Bal- 
lard,  9(i  Iu<l.  Ttj. 

*  Kerr  r.  (.'ommiiuiionerB,  8  Bias.  270. 

•Jordan  r.  IVtty,  5  KU  3'JG;  ncwnman  r.  PotU;r.  1  M...  518;  Tirroo  v. 
Crane,  4  II«>w.  I'r.  257;  McSnutlj  r.  Van  iKumu,  U  II<iw.  Tr.  245;  Lindi-ll  r. 
Benton,  0  Mn.  301;  Clftmcnii  r.  Urciwn,  9  .Mo.  718;  Klanag.in  r.  Tineii,  53  Iljirl). 
687;  .MiUhtll  r.  Clieiitnut,  31  Md.  521;  Tliori)  r.  Fowler,  5  C«w.  440;  Cniig  i: 
Johna^in,  Il^iiin,  520;  LaMipHclt  r.  Wliitncy,  2  Sc.ini.  441;  I'liyn"  «••  rfiyin''ii 
E«'r«,  8  B.  Mofi.  .391;  Jcwttt  r.  H<Miglaud,  30  Al.i.  710;  llink  <.f  MinKin>iiji|ii  r. 
Catlott,  5  llow,  (.Mua.)  175;  Abby  r.  Com.  lUnk  of  New  Orlcaim,  31  Miw«. 
434.  So  aliiu  wriu  may  iiwuo  after  tho  death  of  dufondant,  without  pnMucnt- 
iDg  any  proci-«ding*  by  arirr /.tdtu,  whcm  tho  origin.xl  had  iiwnod  and  boon  levied 
in  hwhblirii.:  ( 'olling.worlh  r.  Horn,  4  Stow.  &  P.  237;  21  Am.  Dec  753; 
CUrk  V.  Kirkaoy,  64  AU.  219. 


§§  52,  53  ISSUING  ALIAS  A^D  PLURIES  WRITS.  136 

the  clerk,  was  novor  in  the  sheriff's  hands.^  The 
soundness  of  this  decision  may  well  be  doubted.  The 
reason  of  tlie  law  requiring  plaintiff  to  revive  his 
judgment  by  scire  facias  after  a  year  and  a  day  has 
passed  without  the  issuing  of  a  writ  was,  that  it  seems 
improbable  that  plaintiff  would  remain  so  long  inactive 
unless  the  judgment  had  been  paid.  He  is  therefore 
not  allowed  to  proceed  without  giving  defendant  notice. 
The  mere  takinij  of  the  writ  from  the  clerk's  office 
shows  a  degree  of  inaction  scarcely  less  than  that  shown 
where  the  writ  is  not  called  for  at  all.^ 

§  53.  When  may  Issue  without  Return  of  Former 
Writ.  —  The  issuing  of  an  alias  writ  is  no  doubt  always 
within  the  power  of  the  court,  while  the  judgment  con- 
tinues in  force.  This  power  will  be  exercised,  under 
the  discretion  of  the  court,  in  a  great  variety  of  cases. 
It  may  often  happen  that  the  execution  has  not  been 
returned,  and  throuorh  some  accident  cannot  be.  In 
all  such  cases  the  court  may,  no  doubt,  on  a  proper 
showing,  allow  an  alias  or  jAuries  to  issue,  without  re- 
quiring the  return  of  the  former  writ.^ 

§  53.  On  Judgment  Satisfied  by  Fraud  or  Mistake. 
—  A  mistake  may  occur  in  issuing  a  WTit  by  which  the 
amount  directed  to  be  collected  may  be  less  than  that 
to  which  plaintiff  is  entitled  under  his  judgment.  In 
such  an  event,  the  plaintiff  is  not  without  remedy.  The 
court  will  not  harass  the  defendant  with  the  trouble 
and  expense  of  two  writs  without  imposing  on  plaintiff 

'  Nicholson  v.  Housley,  Litt.  Sel.  Cas.  301, 

*  Kelley  v.  Vincent,  8  Ohio  St.  415;  deciding  that  "suing  out  execution" 
requires  jictual  or  constructive  delivery  of  the  writ  to  the  sheriflF. 

'  In  Georgia,  where  an  original  ej^ccution  was  returned,  and  then  lost,  it 
wa-s  held  that  the  alia^  ought  not  to  have  issued  without  an  order  of  court. 
Watson  V.  Halated,  9  Ga.  275. 


137  ISSUING  ALIAS  AND  PLURIES  ^VRITS.  §54 

such  terms  as  may  be  requisite  to  indemnify  the  former 
from  all  loss  arising  from  the  negligence  or  mistake  of 
the  latter.  But  if,  after  notice  of  the  mistake,  the  de- 
fendant persists  in  his  refusal  to  pay  the  balance  due,  a 
new  writ  will  be  ordered.^  But  where  an  execution 
issued  for  the  proper  sum,  and  by  the  plaintiff's  direc- 
tions a  levy  was  made  for  a  smaller  amount,  it  was  held 
that  no  further  writ  should  issue.  "An  execution," 
said  the  court,  '*  is  an  entire  thing.  If  a  plaintiff  in  a 
judgment  issues  an  execution,  and  directs  an  amount 
less  than  the  whole  sum  to  which  he  is  entitled  to  be 
levied,  he  cannot  subsequently  issue  another  execution 
for  the  balance.  It  cannot  be  permitted  that  a  defend- 
ant should  be  harassed  by  repeated  executions."'  If  a 
motion  is  made  to  vacate  an  entry  of  satisfaction,  be- 
cause made  by  an  attorney  without  authority,  the 
supreme  court  will  not  review  the  action  of  the  subor- 
dinate court,  if  there  was  a  conflict  of  evidence.^ 

§  54.  After  Sale  under  Void  Writ,  or  where  De- 
fendant had  No  Title.  —  An  execution  may  be  re- 
turned satisfied,  and  yet  it  may  turn  out  that  no  actual 
satisfaction  has  taken  place.  This  may  happen, —  1. 
When  the  writ  or  the  levy  is  void,  and  therefore  does 
not  transfer  tlie  title  to  the  property  seized  and  sold 
under  it;  2.  When  the  entry  of  satisfaction  was  made, 
either  wrongfully  or  by  mistake  ;  and  3.  When  the 
property  sold  was  purchased  by  the  plaintiff,  but  did 
not  belong  to  the  defendant,  and  plaintiff  has  therefore 
been  compelled  to  account  for  it  to  the  true  owner. 

'  Hunt  f.  Paasmorc,  2  Dowl.  P.  C.  414;  L.uigilon  v.  Laiigilon,  1  Root.  ■ir)4; 
People  V.  Ju'lgCH  of  C!iatau(|UO,  1  Wend.  I'.i.  Sco  also  Moore  r.  Edwards,  1 
Bail.  i.'3;  SiniH  r.  CampljcU,  1   McCord'H  Ch.  Oil;  IG  Am.  Doc.  DU5. 

'  People  V.  Onondaga  C.  P.,  3  Wcud.  331. 

»  FuUer  V.  Baker,  4a  Cal.  032. 


§54  ISSUINCr  ALL\S  AND  PLUMES  TTRITS.  138 

111  the  first  class  of  cases,  the  void  writ  is,  in  legal 
effect,  no  writ;  ami  when  the  defendant  has  not  lost, 
nor  the  plaintiil'  acquired,  anything  by  the  writ,  it  is 
not  to  be  disputed  that  a  new  writ  may  and  ought  to 
issue. ^  In  cases  of  the  second  class,  the  propriety  of 
ordering  a  second  writ  is  also  indisputable.  **  Every 
court  has  control  over  its  process,  and  of  entries  upon 
its  records ;  and  whenever  process  is  irregularly  issued, 
or  the  entry  of  the  satisfaction  of  a  judgment  is  im- 
properly made,  the  court  has  power  to  inquire  into  the 
subject,  and  to  cause  the  former  to  be  set  aside  and 
the  latter  to  be  vacated.  It  is  believed  to  be  the 
uniform  practice  to  do  so  on  motion.  This,  it  is  true, 
is  a  summary  mode  of  procedure,  and  important  rights 
and  interests  and  difficult  questions  may  be  involved 
which  are  summarily  tried  by  the  court  without  the 
intervention  of  a  jury,  but  these  objections  have  not 
been  regarded  as  sufficient  to  prevent  courts  from 
exercising  their  jurisdiction  in  this  manner."^  In 
Kentucky,  an  agent  of  the  plaintiff,  through  mistake, 
indorsed  a  credit  on  an  execution.  Some  time  after- 
ward, the  plaintiff  sued  out  another  writ,  disregarding 
this  indorsement.  A  motion  having  been  made  to 
quash  this  last  writ,  the  court  of  appeals  said:  "We 
do  nijt  understand  that  a  receipt  indorsed  upon  execu- 

»  Hughes  V.  Streeter,  24  111.  647;  76  Am.  Dec.  777;  Field  v.  Paulding,  3 
Abb.  Pr.  139;  1  Hill,  187;  citing  Suydam  v.  Holden,  decided  by  N.  Y.  court  of 
appeals  in  Oct.  1853,  and  not  reported;  Freeman  on  Judgments,  sec.  478,  citing 
Stoyel  V.  Cady,  4  Day,  225;  Arnold  v.  Fuller,  1  Ohio,  406;  Townsend  v.  Smith, 
20  Tex.  465;  70  Am.  Dec.  400;  Tate  v.  Anderson,  9  Mass.  92;  Gooch  v.  Atkins, 
14  Mass.  379;  Ladd  v.  Blunt,  4  Mass.  402;  Watson  v.  Reissig,  24  111.  281;  76 
Am.  Dec.  746. 

*  Wilson  V.  StillweJl,  14  Ohio  St.  467;  sec  also  Laughlin  v.  Fairbanks,  8  Mo. 
867.  In  both  these  aises,  satisfaction  had  been  ackiiowledged  by  persons  who 
were  not  entitled  to  the  fruits  of  the  judgments.  McMichael  v.  Branch  Bank,  14 
AliL.  496;  Aycock  v.  Heirrisou,  03  N.  C.  145;  Anderson  v.  Nicholas.  4  Robt.  030. 


139  ISSUING  ALIAS  AXD   PLURIES  WRITS.  §54 

tioii,  by  an  agent,  so  necessarily  precludes  the  plain- 
tiff from  taking  out  another  execution,  as  that  he  will 
have  to  cause  the  receipt  to  be  erased  by  order  of  the 
court  before  he  can  legally  obtain  another.  It  no 
doubt  will  be  much  the  most  prudent  for  clerks  to 
refuse  a  new  execution,  under  such  circumstances, 
without  an  order  of  court.  But  if  a  second  execution 
does  go,  and  it  turns  out  that  plaintiff  was  entitled  to 
it,  we  do  not  think  the  issuing  of  it  should  be  treated 
as  irregular,  and  subject  the  proceedings  under  it  to  be 
quashed."^  But  no  doubt  the  better  opinion  is,  that 
when  a  judgment  appears  to  be  satisfied  of  record,  this 
satisfaction  ought  to  be  vacated  before  anything  fur- 
ther is  done  under  the  judgment.'^  Where  property'  is 
levied  on,  but  returned  unsold  for  want  of  title,  the 
supposed  satisfaction  presumed  to  arise  from  the  levy 
is  sliown  to  have  been  no  satisfaction  whatever. 
Therefore  another  writ  may  issue. ^  The  statute  22 
Heniy  VIII.,  c.  5,  gave  a  remedy  to  the  creditor  to 
whom  the  debtor's  land  had  been  delivered,  under  an 
elegit,  when  the  tenant  by  elegit  was  thereafter  evicted 
without  any  fault  on  his  part. 

It  has  been  held  in  New  York  that  this  statute 
became  a  part  of  the  common  law  of  that  state,  be- 
cause it  was  a  part  of  the  general  law  of  England 
when  the  colony  was  settled  under  the  charter  of  the 
Duke  of  York;  and  further,  that  when  the  elegit  was 
abulislicd  in  that  state,  the  equitable  principles  of  the 
statute  of  Henry  VIII.  remained  in  force,  and  were  so 
far  a[)i)hcable  to  sales  under  execution  as  to  entitle 

»  Fraiikfort  IJank  v.  Marklcy,  1  Dana,  373. 

»  Pot.r  r.  Dexivcr,  1  Trod.  .'J91;  lIughcH  r.  Strcotcr,  24  111.  647;  7G  Am.  Pec. 
777;  Snoa*!  r.  llhrnLsn,  2  Dtv.  &  B.  :i8C;  Uikcman  r.  Kohn,  48  (i.a.  18.S. 

•  PeJlcr  r.  llylliiiohoud,  9  Scrg.  Jt  11.  277;  Colomau  r.  Maualicid,  1  Miles,  5G. 


§54  ISSLTNTr   AUAS  AND  TLURIES  WHITS.  140 

plaintilF  to  equitable  relief  on  the  failure  of  title  to  pro]")- 
erty  puroliaseJ  by  hiui  under  exeeution  against  de- 
fentlant/  The  provisions  of  the  statute  of  Henry  VIII. 
"svere  re-enacted  in  the  territory  comprising  the  present 
states  of  ^lassachusetts,  Maine,  and  New  Hampshire. 
In  those  states,  it  is  clear  that,  when  plaintiff  wholly 
loses  the  lands  taken  bj'  him  under  an  extent  or  sold 
under  execution  on  account  of  the  invalidity  of  defend- 
ant's title,  or  of  the  proceedings  under  the  writ,  he 
may,  by  scire  facias,  obtain  a  new  execution  for  the 
whole  debt;"  and  when  it  turns  out  that  defendant  had 
a  less  estate  than  that  extended,  the  plaintiff  may  ob- 
tain execution  to  compensate  him  for  the  diirerence  be- 
tween the  value  of  the  estate  extended  and  the  estate 
obtained.^  But  it  must  in  all  cases  be  clear  that  the 
plaintiff  has  lost  the  benefit  of  his  purchase.*  But  there 
frequently  arise  cases  to  which  no  statute  like  that  of 
Henry  YIII.  can  be  applied,  either  because  no  such 
statute  is  in  force  in  the  state,  or  because  the  property 
sold  is  not  of  the  kind  contemplated  by  the  statute. 
"  In  such  a  case,  if  the  plaintiff  be  the  purchaser,  a 
satisfaction  is  produced  without  any  resulting  benefit 
to  the  plaintiff,  or  any  detriment  to  the  defendant.  The 
question  then  arises,  Is  this  satisfaction  irrevocable,  or 

1  Bank  of  Utica  v.  Mcrsereau,  3  Barb.  Ch.  586;  49  Am.  Dec.  189. 

-  Perry  v.  Perry,  2  Gray,  320;  Dewing  v.  Durant,  10  Met.  29;  Barker  v. 
Wendell,  12  N.  H.  119;  Green  v.  Bailey,  3  N.  H.  33;  Pillsbury  v.  Smyth,  25 
Me.  427;  Dennis  v.  Arnold,  12  Met.  449;  Stewart  v.  Allen,  5  Me.  103;  Ware 
V.  Pike,  12  Me.  303.  See  R.  S.  of  Me.  1871,  p.  573,  sec.  18;  Grosvenor  v. 
Chesley,  48  Me.  309;  Soule  v.  Buck,  55  Me.  30;  Gen.  Stat,  of  Mass.  1860,  p. 
519,  sec.  22;  Kendrick  v.  Wentworth,  14  Mass.  57;  Wilson  v.  Green,  19  Pick. 
433,  where  the  rule  was  applied  to  personal  property;  Dennis  v.  Sayles,  11 
Met.  2.33;  Gen.  Stot.  Vt.  1803,  p.  308,  sees.  4:^52;  Pratt  v.  Jones,  25  Vt.  303; 
Baxter  r.  Shaw,  28  Vt.  509;  Royce  v.  Strong,  11  Vt.  248;  Bell  v.  Roberts,  13 
Vt.  582;  Hyde  v.  Taylor,  19  Vt.  599;  Briggs  v.  Green,  33  Vt.  505. 

3  Coos  Bank  v.  Brooks,  2  N.  II.  148;  Soule  v.  Buck,  55  Me.  30^ 

*  Batchelder  v.  Wasson,  8  N.  H.  121. 


141  ISSUING  ALIAS  AXD  PLURIES  WRITS.  §54 

may  the  plaintiff  have  it  vacated,  and  procure  a  new 
execution  ?  Upon  this  question,  the  authorities  are 
quite  even]}^  divided,  and  are  clearly  irreconcilable.  On 
the  one  hand,  it  is  insisted  that,  as  the  maxim  caveat 
emptor  applies  to  all  purchasers  at  sherifiV  sales,  the 
purchaser  takes  all  risks ;  and  therefore,  that  he  can- 
not have  the  sale,  and  the  satisfaction  thereby  produced, 
vacated  on  account  of  the  failure  of  defendant's  title. 
On  the  contrary,  it  is  claimed  that  'the  doctrine  of 
caveat  emptor  has  its  legitimate  effect  in  precluding  any 
idea  of  warranty  by  the  defendant  in  execution,  or  by 
the  sheriff';  and  therefore,  that  it  interposes  no  ob- 
stacle to  prevent  the  plaintiff  from  obtaining  that  relief 
to  which,  upon  principles  of  natural  justice,  he  seems 
entitled."^  In  South  Carolina,  a  motion  was  made  to 
set  aside  an  entry  of  satisfaction  and  to  permit  the  issu- 
ing of  another  writ,  on  the  ground  that  the  goods  from 
the  sale  of  which  the  apparent  satisfaction  had  resulted 
were  not  the  property  of  the  defendant,  and  tlieir  value 
had  been  recovered  by  their  owner  in  actions  of  tres- 
pass against  the  plaintiff  and  the  sheriff.  The  motion 
was  denied  because  in  such  a  case  *Hhe  plaintiff  levies 
and  sells  at  his  own  risk  and  with  notice  that  the  sales 
will  be  applied  in  satisfaction  of  his  execution,  though 
he  may  be  made  responsible  for  damages,  if  he  has  tor- 
tiously  sold  the  property  of  another  person  as  the  prop- 
erty of  the  defendant."-    In  North  Carolina,  the  statute 

'  Freeman  on  .ludgrncntB,  sec.  478.  In  Piper  v.  Khvoo.l,  4  Penio,  105, 
plaintiff  wan  all<)wt<l  to  recover  in  an  action  on  a  jiiclj,'mcnt  which  hatl  hecn 
•atisfied,  on  proving  that  the  M.atittfaction  was  produced  by  a  sale  of  property 
which  defen.iant  ha<l  recovered  k-causo  it  wad  exempt  from  execution.  In 
Tc^ncfwce,  the  revival  of  judgment  whore  it  waa  satisfied  by  sale  of  property 
not  belonging  to  defendant  i<i  provi.led  ft.r  by  statute.  Eddo  r.  Cowan,  1  Snced, 
290;  Swaggnrty  t-.  Smith,  I  noi«k.  403. 

*  J«uo<  V.  Burr,  5  Strob.  147;  53  Am.  Dec.  009. 


§M  ISSUING  ALIAS  AND  PLURIES  "\VRITS.  142 

jn'ovitlos  that  a.  purchaser  at  execution  sale  who  has 
been  deprived  of  the  propcrtj^  purchased  or  been  com- 
pelleil  to  pay  daniai;-es  to  the  real  owner,  in  consequence 
of  a  defect  in  tlie  defendant's  title,  may  recover  from 
the  defendant  in  an  action  on  the  case,  the  amount  paid 
for  such  propert}',  with  interest.  The  remedy  given  by 
this  statute  has  been  held  to  be  exclusive,  and  the  sale, 
to  the  amount  realized  from  it,  an  irrevocable  satis- 
faction of  the  judgment/  Ii\  Ohio  and  Pennsylvania, 
no  relief  can  be  had  at  law  where  the  property  sold  is 
lost  to  plaintiff  because  of  defects  in  the  defendant's 
title.'  In  the  first-named  state,  manifestly,  a  doubt  has 
arisen  with  respect  to  the  propriety  of  the  early  decis- 
ions on  the  subject,  and  the  rule  maintained  in  such 
decisions  has  been  limited  rather  than  extended.  Thus 
where  a  mortgagee  who  recovered  judgment  at  law  on 
some  of  the  notes,  secured  by  his  mortgage,  and  sold 
real  property,  the  title  to  which  he  failed  to  obtain  on 
account  of  a  prior  conveyance  made  by  the  mortgagor, 
of  which  he  was  ignorant,  commenced  subsequently  a 
suit  to  foreclose  the  equity  of  redemption,  it  was  held 
that  the  amount  bid  at  the  execution  sale  did  not  in 
equity  constitute  a  satisfaction,  and  could  not  be  asserted 
by  the  mortgagor  as  such.^  The  court,  however,  de- 
clined to  consider  the  question  whether  on  a  bill  filed 
by  the  plaintiff  to  vacate  the  apparent  satisfaction,  it 
would  act  or  not,  and  restricted  itself  to  determining 
that  it  would  not  at  the  instance  of  the  mortixao-or  ex- 
tend  him  any  aid.  In  Minnesota,  it  is  clear  that  relief 
may  be  obtained  in  equity  by  a  plaintiff  when  the  title 

»  Halcombe  v.  Loudermilk,  3  Jones,  491;  Wall  r.  Fairley,  77  N.  C.  105.» 
'  Vattier  r.  Lytle'n  Ex'r,  G  Ohio,  482;  Freeman  v.  Caldwell,  10  Watts,  10. 
»  Hollidter  v.  Dillon,  4  Oliio  St.  108. 


143  ISSUING  ALIAS  AND  PLURIES  WRITS.  §54 

to  lands  purchased  by  him  on  execution  fails  without 
his  beuig  guilty  of  any  neglect  in  making  his  purchase, 
as  where  he  relied  upon  an  abstract  of  title,  which 
omitted  a  previous  conveyance  made  by  defendant.^ 
Like  relief  was  extended  in  the  same  state- where  the 
plaintiff  bid  upon  certain  lots  under  the  belief  that  they 
were  the  same  lots  levied  upon  under  an  attachment 
issued  in  the  case,  when  in  fact  the  sheriff  had,  through 
a  mistake  on  his  part,  levied  upon  other  lots  which 
were  subject  to  liens  paramount  to  plaintiff's  judgment.^ 
Generally,  where  the  relief  is  allowed  at  all,  it  can  be 
procured  without  resort  to  equity,  as  by  permitting  the 
sheriff  to  correct  his  return  so  as  to  show  that  no  satis- 
faction w^as  realized,  or  by  ordering  the  apparent  satis- 
faction vacated  on  motion  or  hy  scire  facias  and  directing 
an  alias  writ  to  issue,'  and  in  some  states  relief  can  be 
had  either  by  motion  in  the  original  case,  or  by  a  suit  in 
equity  to  re^'ive  and  reinstate  the  judgment/  The 
statute  in  Iowa  provides  that  an  execution  sale  may  be 
set  aside  "where  the  judgment  on  which  execution  is- 
sued was  not  a  lien  "  on  the  property  sold.  If,  how- 
ever, the  judgment  was  a  lien  on  the  property,  the 
plaintiff  purcbasmg  is  without  redress,  though  the  prop- 
erty is  ultimately  lost  to  him  by  reason  of  paramount 
liens.^ 

»  First  Nat.  Bank  r.  Rogers,  22  Minn.  224. 

»Lay  f.  Sliaubliut,  (J  Minn.  182;  80  Am.  Dec.  44G;  ShauMiut  v.  Hilton,  7 
Minn.  r>OG. 

»  Mag\\-ire  r.  Marks,  28  Mo.  103;  75  Am.  Dec.  121;  Whiting  r.  Bra«lloy.  2 
N.  H.  91);  Adams  r.  I'armetcr,  ')  Cow.  280;  Ricliardson  r.  McDougall,  10  W.nd. 
80;  TowTisend  r.  Smith,  20  Tex.  4G.');  70  Am.  Dec.  400;  Andrew.s  v.  Richard- 
son. 21  Tex.  2S7;  Rittcr  r.  HciiHliaw,  7  Iowa,  98;  Tudor  v.  Taylor,  2(;  Vt.  144; 
C'owles  r.  liacon,  21  Conn.  4.")1;  ;')(}  Am.  Dec.  371;  Chambers  t'.  Cochran,  18 
Iowa,  159. 

*  Crow  »•.  Zane,  47  Cal.  f.02;  Schorr  v.  Himmclmon,  53  Cal.  312. 

*  Uoluinger  v.  Edwards,  51  Iowa,  383. 


§§  55,  56  ISSUING  AT  J  AS  AND  PLURIES  WRITS.  144 

§  55.  Form  of  Alias.  —  An  alias  writ  should  contain 
all  the  particulars  embraced  in  an  original  writ;  and  in 
addition,  should  show  the  issue  of  the  former  writ,  the 
amount  rcahzed  thereon,  and  the  sum  remaining  due, 
and  for  which  the  officer  is  to  levy.^  As  the  alias  ca.n- 
not  properly  issue  before  the  return  of  the  original,  it 
GUirht  not  to  be  fesfed  before  such  return.  Mere  errors 
in  issuing  an  alias  or  pluries  writ,  whether  in  regard  to 
its  form  or  to  the  time  and  manner  of  its  issue,  while 
they  may  make  it  voidable,  do  not  render  it  void.^ 
These  errors  may,  however,  constitute  grounds  for 
vacating  the  writ.  Thus  in  Vermont,  where  a  judg- 
ment had  been  satisfied  in  part,  but  an  alias  execution 
issued  thereon,  as  if  no  partial  satisfaction  existed,  the 
writ  and  the  levy  thereof  made  upon  real  property  were 
set  aside.^  A  second  execution  will  not  be  quashed  on 
the  sole  ground  that  it  does  not  purport  to  be  an  alias} 

§56.  Notice  of  Motion  for. — Where  the  original 
execution  has  been  returned  unsatisfied,  wholly  or  in 
part,  an  alias  may  issue  without  any  notice  to  the 
defendant.^  In  Massachusetts,  it  seems  to  be  the  usual 
practice,  before  issuing  an  alias  on  a  judgment  for  ali- 
mony, to  give  defendant  notice,  that  he  may  have  an 
opportunity  of  showing  that  payment  has  been  made;® 

1  Chapman  v.  Bowlby,  8  Mees.  &  W.  249;  Lee  v.  Neilson,  3  U.  C.  Law  J. 
72;  Oviat?\  Vyner,  Salk.  318;  Smith  r.  Jones,  2  All.  176;  Watson  v.  Halsted, 
9  Ga.  275;  Bingliam  on  Judgments  and  Executions,  260;  Scott  v.  Allen,  1  Tex. 
508;  Maupin  v.  Eniraon.s,  47  Mo.  304;  Fairbanks  v.  Devereaux,  48  Vt.  550. 

••'  Rammel  r.  W"atson,  2  Vroom,  281;  Rushin  r.  Shields,  11  Ga.  636;  56  Am. 
Dec.  436;  State  v.  Page,  1  Spears,  408;  40  Am.  Dec.  608;  Br>-ant  v.  Johnson, 
24  Me.  3.)7;  Mace  v.  Dutton,  2  lud.  309;  52  Am.  Dec.  510. 

*  Fuiihankd  v.  Devereaux,  48  Vt.  550. 

*  Bu.-hong  V.  Taylor,  82  Mo.  071. 

*  Jnhnsoji.  I'.  Huntington,  13  Conn.  50. 
'  Newcomlj  r.  Newcorab,  12  Gray,  28. 


145  ISSTHNG  ALIAS  AXD  PLURIES  WRITS.  §  oG 

but  the  court  may,  in  its  discretion,  issue  an  alias  with- 
out such  notice.^  When  the  apph'cation  for  an  alias  is 
made  without  returning  the  original,  as  where  the  lat- 
ter is  alleged  to  be  lost,  notice  should  be  given  to  the 
defendant." 

1  Chase  v.  Chase,  105  Mass.  385. 

*  Douw  V.  Burt,  1  Wend.  89.  In  Georgia,  notice  of  motion  to  issnean  alias: 
when  the  original  has  been  lost  i^  not  necessary.  Lo^vry  v.  Richards,  G2  Ga.  370. 
Sometimes  the  renewal  of  executions  is  authorized  by  statute.  \A1iere  this  ia 
the  case,  there  seems  to  be  no  necessity  for  the  return  of  original  and  the  issue 
of  alias  writs.  Any  memorandum  or  indorsement  made  on  the  writ  by  the 
proper  ofl&cer,  indicating  that  he  intends  that  it  shall  continue  in  force,  may  be 
treated  as  a  renewal,  and  as  authorizing  the  officer  to  proceed,  either  to  make 
new  levies,  or  to  dispose  of  those  already  made.  Wickham  i:  Miller,  12  Johns. 
320;  Chapman  r.  Fuller,  7  Barb.  70;  Preston  r.  Leavitt,  6  Wend.  GG3;  Wilson 
V.  Gale,  4  Wend.  G33.  In  Connecticut,  the  practice  has  always  prevailed  of 
renewing  executions  by  erasing  the  original  date  and  inserting  a  subseriuent 
one.  Roberts  v.  Church,  17  Comi.  142.  This  practice  is  irregular  in  Ver- 
mont, but  a  writ  so  altered  is  not  void.  Sawyer  v.  Doane,  19  Vt.  598.  In 
Illinois,  and  in  most  of  the  other  states,  the  renewal  of  an  execution  is  not 
sanctioned  by  statute,  and  is  therefore  legally  impossible.  Calhoun  County  r. 
Birch,  27  111.  440.  In  South  Carolina,  an  execution  may  be  renewed  by  the 
service  of  summons  on  defendant,  his  heirs  or  administrators,  to  show  cause 
why  it- shall  not  be  renewed.  The  defendant  may  by  his  written  consent 
authorize  such  renewal  without  any  summons  or  proceedings.  Carrier  v^ 
Thompson,  11  S.  C.  79. 
Vol.  I. —  10 


§r.7  THE  \MUT  OF  VENDITIONI  EXPONAS.  14G 


CHAPTER  V. 

THE  AVPJT  OF  VENDITIONI   IvXPONAS. 

§  57.  Definition  and  object. 

§58.  Gives  no  antliority. 

§  50.  M;iy  issue  with  njicri/aciaa  clause. 

§  60.  Effect  of  siilo  under. 

§  01.  Coll:iter;il  attack. 

§  02.  To  \\  honi  directed. 

§57.  Definition  of  Object. — The  venditioni  exponas 
is  sometimes  spoken  of  as  a  branch  of  the  writ  of  fieri 
fdcias.^  It  is  issued  when  an  original,  alias,  or  pluries 
writ  of  fieri  facias  is  returned  witli  an  indorsement, 
showing  that  the  officer  has  levied  on  property,  and 
has  the  same  in  his  hands  unsold.  In  all  such  cases, 
the  plain titY  may  wish  to  compel  a  sale  of  the  property 
levied,  in  order  that  he  may  have  it  applied  to  the 
sati.^faction  of  his  debt,  and  may,  in  case  it  does  not 
produce  a  complete  satisfaction,  have  execution  for  the 
sum  remaining-  unpaid.  Without  this  writ,  the  plain- 
tift^'s  remedy  against  the  officer  would  be  inadequate; 
with  the  aid  of  the  A\'rit,  such  remedy  is  complete. 
The  officer  is  bound  to  return  the  writ  o^ fieri  facias  by 
the  return  day  thereof,  and  is  liable  to  suit  if  he  does 
not  return  it,  either  executed  or  with  a  sufficient  excuse 
for  not  executing  it.  In  case  he  returns  that  he  has 
made  a  levy,  and  gives  sufficient  excuse  for  not  having 
sold  the  property  levied,  then  the  plaintiff  may,  by  pro- 
curing a  writ  of  venditioni  exponas,  compel  him  to  pro- 
ceed with  the  sale.     This  writ  is,  therefore,  properly 

»  Hugliea  V.  Rees,  7  Dowl  P.  C.  56;  4  Meee.  &  W.  408;  1  H.  &  II.  347. 


147  THE  WRIT  OF  VEXDITIOXI  EXPONAS.  §58 

defined  as  the  writ  which  compels  an  officer  to  proceed 
with  the  sale  of  property  levied  upon  under  a  fieri 
facias} 

§  68.  Gave  the  Officer  No  Authority. — The  vendi- 
tioni erponas  was  so  frequently  issued  as  to  create  the 
impression  that  it  was  a  writ  of  authorization  as  well  as 
of  compulsion,  and  was  necessary  to  enable  the  officer 
to  proceed  with  the  sale.  Such  was  not  the  fact;  it 
gave  the  officer  no  authoritj'  not  previously  possessed 
by  him.-  Notwitlistanding  the  return  of  the  fieri  facias, 
he  could  sell  tlie  property  levied  on  as  well  without  as 
with  a  venditioni  exponas.  If  he  was  willing  to  proceed, 
the  issue  of  this  writ  was  a  clear  superfluity.^  Where 
a  levy  had  been  made,  and  thereafter  a  supersedeas  is- 
sued, it  was  held  that  the  levy,  having  been  commenced, 
gave  the  officer  a  special  property  which  the  svj)ersedeas 
did  not  affect,  and  that  he  could,  therefore,  by  a  vendi- 
tioni exponas,  be  compelled  to  proceed  with  the  sale.* 
If  the  property  mentioned  in  the  venditioni  exponas 
was  sold  without  satisfying  the  judgment,  the  proper 
remedy  was  to  jirocure  an  alias  fieri  facias  for  tlic  bal- 
ance due.'^     From  the  well-established  i>roposition  that 

•  Ciijicroii  V.  Reynolds,  Cowp.  400;  Welch  r.  Sullivan,  8  Cal.  10.'');  Hdlinos 
r.  Mcladoc,  '20  Wi.s.  0.")7;  Ikllingall  r.  Duncan,  3  C.ihn.  477;  Lockriilgc  v.  Bald- 
win, 20  Tex.  308;  lU  Aim.  Deo.  3S.1;  Fri«ch  r.  Miller,  5  P.i.  St.  310. 

*  Manalian  »•.  .SainuKin,  3  Md.  403;  liuehler  r.  Roger«,  08  Pa.  St.  0;  Young 
r.  Smith,  23  Tex.  5'.I8;  70  \\n.  Dec.  81;  Smith  r.  Spencer,  3  Ircd.  2."rt3;  Cuin- 
min-J  V.  Weld),  4  Pike,  221);  Borden  r.  Tillman,  39  Tex.  2()2;  Ha«ting.s  r.  Bry- 
ant, 115  111.  75. 

»  Ritchie  V.  Hig^^uilxjtham,  20  Kan.  04.'>;  Ayro  v.  Aden,  Cro.  Jae.  73;  Irvin 
r.  Pickutt,  3  Bd.h,  .'M3;  Clerk  v.  Withers,  Ld.  Raym.  1073;  Colycr  r.  Iliggins, 
1  Duvall,  7;  Keith  r.  Wilson,  3  Met.  (Ky.)  204. 

♦  CIiarUTr.  PcctcT,  Cro.  Kliz.  507;  Mdton  v.  Edrington,  1  Dyer,  98  I>;  Over- 
ton r.  Perkins,  Mart.  &  Y.  307. 

*  Den  on  dom.  ui  Smith  r.  Fore,  10  Ircd.  37;  61  Am.  Deo.  370;  Chamber* 
V.  Dollar,  29  U.  C.  g.  B.  599. 


§58  THE   WRIT  OF  VENDITIONI  EXPONAS.  148 

a  venditioni  exponas  confers  no  authority  upon  an  officer, 
and  is,  in  its  cllect,  confined  to  inciting  <u-  coin])cHing 
liini  to  pursue  an  authority  otherwise  possessed,  it  fol- 
lows tliat  in  determining  the  validity  of  an  execution 
sale,  the  roiditioiii  exponas  may  be  disregarded,  for  it 
can  neither  detract  from  a  sale  otherwise  valid,  nor  givis 
force  to  a  sale  otherwise  void.  The  iK>wer  of  tlie  offi- 
cer depends  solely  on  the  prior  writ  and  the  proceed- 
ings thereunder.^  Hence,  if  acting  under  this  writ  an 
officer  sells  property  in  a  case  where  no  fieri  facias  had 
issued,^  or  where  the  property  sold  had  not  been  levied 
upon,^  or  where  the  judgment  had  been  satisfied  or 
merged  into  another  judgment,*  such  sale  is  clearly  void; 
for  in  neither  of  these  instances  is  there  any  power  to 
subject  the  property  to  a  compulsory  sale.  At  the 
common  law,  this  writ  issued  only  to  compel  a  sale  of 
personal  property,  for  the  very  obvious  reason  that  the 
policy  of  that  law  did  not  permit  the  divesting  of  the 
title  to  real  i^roperty  by  an  execution  sale.  In  this 
country  a  different  policy  prevails, — one  under  which 
the  sale  of  realty  under  execution  is  regarded  with  but 
little  less  favor  than  that  of  personal  estate.  When- 
ever under  the  local  statutes,  a  levy  upon  real  estate 
is  sanctioned,  and  when  made  constitutes  a  continuing 
lien  notwithstanding  the  return  of  the  execution,  the 
property  so  levied  upon  may  after  the  return  day  of 
the   writ   be  sold  under  a  venditioni   expjonasJ'      The 

1  Frink  r.  Roe,  70  Cal.  296. 

niurstn  Liford,  11  Heisk.  G22. 

»  Borden  r.  MeRae,  46  Tex.  396;  Wood  v.  Augustine,  61  Mo.  46. 

*  Wri-ht  V.  Yell,  1.3  Ark.  .W3;  58  Am.  Dec.  .336. 

*  Borden  v.  Tillman,  39  Tex.  262;  Lockridge  v.  Baldwin,  20  Tex.  303;  70 
Am.  Dec.  385;  Borden  v.  McRae,  46  Tex.  396.  It  has,  however,  been  denied 
that  a  vend'dioiii  exponas  can  give  power  to  sell  lands  after  the  return  day: 
PkOgcrs  V.  Ca,wood,  1  Swan,  143;  55  Am.  Dec.  729. 


149  THE  VTRIT  OF  VEXDITIOXI  EXPONAS.  §58 

doubtful  question  is,  whether  lands  ma}-  be  sold  after 
the  return  day  of  the  execution  in  the  absence  of  this 
writ.  In  the  case  of  personal  estate,  it  is  conceded 
that  the  officer  lcv3'ing  the  writ  obtains  a  right  of  pos- 
session and  a  s|>ecial  property  in  the  goods  seized,  which 
continue  after  the  return  day,  and  authorize  him  to  sell 
as  effectually  as  if  the  original  writ  remained  in  full 
force.  But  a  levy  upon  real  estate  gives  no  special 
property,  and  no  right  of  possession  to  the  officer  making 
the  levy,  and  hence  it  has  been  inferred  that  after  the 
return  day  of  the  writ  under  which  the  levy  was  made, 
he  occupies  no  official  or  other  relation  toward  such 
property',  and  has  no  power  to  dispose  of  it,  and  thereby 
make  effectual  the  lien  created  by  the  levy.  Where 
this  view  prevails,  an  exception  exists  to  the  general 
rule  that  a  venditioni  exponas  confers  no  authority,  and 
it  is  then  necessary  after  the  return  day  of  an  execu- 
tion that  this  writ  issue  to  empower  the  officer  to  sell 
real  estate  levied  upon  but  not  sold,  and  a  sale  without 
such  writ  is  void.^  In  our  judgment,  the  special  prop- 
erty and  the  right  of  possession  vested  in  an  officer 
upon  the  levy  of  a  writ  upon  personal  property  are  not 
the  foundation  of  his  authorit}'  to  sell,  but  are  mere 
incidents  of  tliat  authority  designed  to  make  its  exer- 
cise effectual.  His  authority  is  derived  from  the  judg- 
ment, the  writ  and  its  levy.  That  this  authority  may 
be  pursued  the  more  effectual!}-,  the  officer  is  vested 
with  a  special  property  and  right  of  possession,  for 
otherwise  the  chattels  seized  might  be  taken  out  of  his 
p08.session  witli  impunity,  and  their  application  to  the 

•  Hester  r.  Dtiprcy,  40  Tex.  r/J7;  Mitcliill  r.  Ireland.  Cyi  IVx.  IWCk  IVir.leii 
r.  McKiimie,  4  llawkH.  'J79;  1.5  Am.  I)ec.  T)!*);  Porter  r.  Ncclau,  4  Yeatcs,  I()8; 
Smith  r.  MiHKly.  \H  Ala.  185;  5'J  Am.  Dec.  2'2\;  Shcupard  r.  Khca,  49  Ala. 
125;  and  ace  poit,  §  IOC. 


§59  THE  WRIT  OF  VENDITIONI  EXPONAS.  V>0 

satisfi\ction  of  the  writ  delayed  or  wholly  avoidod.  The 
authority  to  sell  real  estate  may,  on  the  otlun-  hand, 
bo  prudontly  and  effectively  exercised  without  divesting 
the  owner  of  pt^ssession,  or  conferring  any  special  prop- 
erty on  the  levying  officer.  It  can  neither  be  hidden, 
nor  seized  and  removed  beyond  his  bailiwick ;  and  the 
recording  of  the  levy  may  give  notice  to  all  intending 
purchasers  or  encumbrancers  and  prevent  the  creation 
(^f  any  new  rights  or  interests  not  subordinate  to  the 
levy.  By  the  lev}-,  a  lien  is  created  whose  duration  is 
not  limited  to  the  return  day  of  the  writ,  and  from 
this  it  must  necessarily  follow  that  the  officer  has  au- 
thority, notwithstanding  the  passing  of  such  return  day, 
to  make  his  levy  pi'oductive  by  a  sale  of  the  realty 
levied  upon;  and  this  authority  is  not  dependent  on 
the  issuing  of  a  venditioni  exponas,  for  this  writ  does 
nothing  more  than  to  compel  the  performance  of  a  pre- 
existing duty.^ 

^  59.  May  have  Fieri  Facias  Clause. —  The  vendi- 
tioni exponas  could  be  issued  with  a  fed  facias  clause. 
It  then  united  the  powers  of  the  two  writs,  compelling 
the  sale  of  the  property  under  levy,  and  authorizing  the 
seizure  and  sale  of  such  other  property  as  might  be  ne- 
cessary to  satisfy  the  judgment.  But  if  the ^m  facias 
clause  was  not  inserted,  its  omission  could  not  be  treats  d 
as  a  clerical  error,  to  be  thereafter  cured  by  amendment. 
A  levy  and  sale,  where  there  is  no  fieri  facias  clause, 
are  therefore  entirely  unauthorized  and  absolutely  void."^ 

*  Rose  r.  Ingram,  98  Ind.  276;  Knox  v.  Randall,  24  Minn.  479;  Johnson  v. 
BeinLs,  7  Neb.  224;  Frink  v.  Roe,  70  Cal.  296;  Cox  v.  Joiner,  4  Bil^l),  94;  Stein 
r.  Chambless,  18  Iowa,  474;  Butter^cld  v.  Walsh,  21  Iowa,  101;  Phillips  v. 
Dana,  3  Scam.  557;  Moreland  v.  Bowling,  .3  Gill,  .OOO;  Remingtons.  Liuthicuni, 
14  Pet.  84;  Bussey  r.  Tuck,  47  Md.  171 ;  see  pcMt,  §  106. 

2  Maupin  r.  Etnmons,  47  Mo.  304;  Quinn  v.  Wiswall,  7  Ala.  045;  Zug  v. 
Laughliu,  23  Ind.  170;  Lee  v.  liowes,  30  U.  C.  Q.  B.  292. 


151  THE  WRIT   OF  VENDITIOXI   EXPONAS,  §§  60,  Gl 

The  property  must  be  sold  under  the  venditioni  before 
seizure  can  be  made  under  the  fieri  facias  clause.^ 

§  60.  The  Effect  of  a  Sale  under  a  Venditioni  Ex- 
ponas is  the  same  as  though  the  sale  had  been  made 
under  the  original  writ  before  the  return  day.  The 
purchaser  can  obtain  no  better  nor  greater  title  than 
would  have  passed  under  the  original  writ;'  but  on  the 
other  hand,  the  lien  of  the  original  writ,  and  of  the  levy 
thereunder,  continue  under  the  ve)  id  it  ioni  exponas,  etnd 
confer  as  ample  a  title  as  could  have  been  transferred 
under  and  by  virtue  of  such  original  liens,^ 

§61.  Collateral  Attack.  —  A  venditioni  exponas  is 
as  little  liable  to  collateral  attack,  and  as  much  subject 
to  amendments,  as  the  original  writ.  Thus  where  it 
was  issued  under  the  seal  of  the  court,  but  without  the 
clerk's  signature,  this  omission  was  regarded  as  a  cleri- 
cal error,  proper  for  amendment,  but  not  destroying  the 

validitv  of  the  writ.'*     So  where  the  writ  omitted  some 

•J 

of  the  articles  which  were  sold  under  it,  it  was  amended 
after  forty  3'ears  to  sustain  the  sale,  it  appearing  that 
all  the  articles  were  levied  on  under  the  fieri  facias." 
In  such  a  case,  there  is  no  need  of  an  amendment;  for 
as  the  oiKcer  has  authority  to  sell  without  any  vendi- 
tioni exponas,  he  cannot  be  said  to  liave  less  authority 
because  of  imtbrmalities  in  the  writ,  whether  of  form 
or  substaiK-L'." 

»  Cana-l.-iy  r.  Nuttall,  2  Ircd.  Eq.  265;  Dan  v.  Nichols,  03  N.  C.  107. 

»Ba.lhaiii  v.  (ox,  II  Ire.l.  4rA). 

»  Yarljon.u;^h  r.  Sutc  IJaiik,  2  Dov.  2.1;  Ziig  v.  Laughliii,  2:i  liul.  170;  Doo 
r.  HayuH,  4  lu.l.  117;  Taylor  v.  Mumfonl,  3  Humph.  GO;  liicka  c.  Eili»,  Go 
Mo.  177. 

*  McCorniack  v.  Mca-non,  1   Scrg.  &,  R.  92. 

»  Do  n.uiH  r.  iJuiui,  2  I'a.  St.  .335;  44  Asa.  Dec.  201.  Soo  alao  Chambers  v. 
Dolkr.  2y  L'.  C.  y.  B.  599. 

•  Soo  §  58. 


§62  THE  ^^TJT  OF  VENDITIONI  EXPONAS.  162 

^  62.  To  Whom  Directed.  —  This  writ  is  usually 
directed  to  tlie  otHcer  wlio  made  the  levy,  whether  he 
ooiitiiuies  in  olKce  or  not.  It  may,  however,  be  di- 
rected to  and  executed  by  liis  successor  in  oflice,  if  the 
levy  be  upon  real  estate;  ^  but  the  authorities  make 
a  distinction  between  cases  where  the  venditioni  is 
issued  ibr  the  sale  of  personal  property,  and  where  it  is 
issued  for  the  sale  c)f  land.  In  cases  of  the  former 
class,  the  vcnditio})i  must  go  to  the  officer  who  made 
the  seizure;  for  by  tlie  seizure  he  acquired  a  special 
property  in  the  chattels,  and  a  right  to  their  posses- 
sion. -  If  the  courts  will  but  consistently  apply  the 
well-established  rule  that  a  venditioni  exponas  is  not  a 
writ  of  authorization,  but  of  compulsion  merely,  that 
the  object  of  its  issue  is  not  to  create  an  authority,  but 
to  arouse  to  action  one  already  existing,  then  the  ques- 
tion whether  it  shall  issue  to  the  sheriff  in  office,  or 
to  his  predecessor,  by  whom  the  lev}'-  was  made,  is  of 
iusigniticant  import.  The  important  question  is,  What 
acts  may  a  sheriff  or  other  officer,  lawfully  and  effectu- 
ally do,  after  the  expiration  of  his  term  of  office? — for 
such  acts  may,  we  think,  be  done  without  as  well  as  with 
the  writ  of  venditioni  exponas.  The  general  rule  is,  that 
when  an  officer  enters  upon  the  execution  of  the  writ, 
and  at  all  events  when  he  has  proceeded  so  far  as  to 
make  a  valid  levy  thereunder,  he  may,  notwithstand- 
ing the  expiration  of  his  official  term,  complete  the 
execution  of  the  process,  and  do  every  act  necessar}^  to 
completely  appropriate  to  the  satisfaction  of  the  writ 
the  property  so  levied  upon,  including,  in  the  event  of 

'  Bcllingall  r.  Duncan,  3  Gilm.  477;  Sumner  v.  Moore,  2  McLean,  59; 
Holmes  v.  Mcludoo,  20  Wis.  G57;  Tarkingtou  v.  Alexander,  2  Dev.  &  B.  87. 

■■'  Buasey  v.  Clark,  47  Md.  171;  Clark  v.  Sawyer,  48  Cal.  133;  Purl  v.  Duval, 
6  Har.  &  J.  Gt);  9  Am.  Dec.  490. 


153  THE  y^TJT  OF  VENDITIOXI  EXPONAS.  §62 

a  sale,  the  execution  of  such  muniments  of  title  as  may 
be  required  to  divest  the  title  of  the  judgment  debtor 
and  vest  it  in  the  purchaser,  at  the  execution  sale. 
For  all  these  purposes,  he  may  be  considered  as  if  still 
in  office.  The  authorit}-  of  his  deputies  is  continued, 
unless  revoked  by  him,  and  they  may  perform  acts  and 
execute  writings  in  his  name,  with  like  effect  as  if  he 
remained  in  office.^  If  the  levy  was  upon  personal 
estate,  there  was  never  any  question  that  the  sale 
might,  and  indeed  must,  be  made  by  the  officer  who 
levied  the  writ,  though  in  the  mean  time  he  had  ceased 
to  hold  the  office.^  "  It  seems  to  be  a  well-settled  rule 
of  law,  a  rule  of  the  common  law,  recognized  and  con- 
firmed by  statute,  that  when  an  executive  officer  has 
begun  a  service,  or  commenced  the  performance  of  a 
duty,  and  thereby  incurred  a  responsiblity,  he  has  the 
authority,  and  indeed  is  bound,  to  go  on  and  complete 
it,  althougli  his  general  authority,  as  such  officer,  is 
superseded  Ij}'  his  removal,  or  his  derivative  authority 
terminated  by  the  determination  of  the  office  of  his 
principal.  His  authority  attaches  by  the  commence- 
ment of  the  service,  and  will  be  superseded  only  when 
it  is  completed,  wliether  it  be  a  longer  or  a  shorter 
time."^  The  levy  of  an  execution  upon  real  estate  does 
not,  as  in  the  case  of  its  levy  upon  personal  property, 
vest  in  the  officer  any  special  property,  or  right  of  pos- 

»  Tyrec  r.  WIIhou,  IMlratt.  .W;  58  Am.  Dec.  21.3;  Loflan.!  v.  Ewinj:,  T)  I.itt. 
42;  15  Am.  Doc.  41;  Jack»ou  r.  ('•.Uinn,  .1  Cw.  8'J;  Ikilhinl  v.  Thoina-s,  19 
Oratt  *-.'4;  Tuttlc  v.  Jackson,  G  Wend.  '2VJ;  MIUh  r.  Tukcy,  *>»  C'al.  37.'?;  83 
Am.  Dec.  74. 

»  Clerk  V.  WithcrM,  1  Silk.  .322;  (J  Mo<l.  21»0;  Doo  r.  Donston,  1  Kiru.  & 
Al.l.  230;  Sauviiict  ..  M.ixwill,  2ti  I^o,  Ami.  280;  Peoi.lc  f.  Hiring,  8  Cal.  40(5; 
State  r.  Uol>crtJ«,  7  llaU.  114;  21  Am.  Doo.  02;  Newman  r.  lieckwith.  Gl 
N.  Y.  205;  Clark  v.  Pratt,  55  M«.  540;  Tukcy  v.  Smith,  18  Mo.  125;  30  Am. 
Dec.  704. 

*  Lawrence  v.  lUco,  12  Met  533. 


§G2  THE  WRIT  OF  VENDITIONI  EXPONAS.  154 

session;  hence  it  has  been  decided  that  on  the  termina- 
tion of  his  official  term,  ho  could  no  longer  sell  such 
real  estate,^  though  if  the  sale  had  taken  place  during 
such  term,  we  believe  no  doubt  has  ever  been  expressed 
that  he  could,  after  the  expiration  of  the  term,  make 
his  return  upon  the  writ,  or  execute  any  conveyance  or 
other  evidence  of  title,  based  upon  the  sale,^  or  receive 
from  the  judgment  debtor,  or  other  person  entitled  to 
redeem,  the  moneys  required  to  make  a  valid  redemp- 
tion from  such  sale.^  The  better  opinion  is,  that  if  a 
levy  be  made  upon  real  estate,  the  officer  levying  the 
writ  may,  after  the  expiration  of  his  term,  complete  the 
execution  of  the  writ  by  a  sale  and  conveyance;  but 
that  his  powers  in  this  respect  are  concurrent  with 
those  of  his  successor  in  office,  and  therefore,  that  the 
venditioni  exponas  may  properly  be  issued  to  and  exe- 
cuted by  either/ 

*  Leshey  v.  Gardner,  3  Watts  &  S.  314;  38  Am,  Dec.  764;  Bank  of  Ten- 
nessee V.  Beatty,  3  Sneed,  305;  65  Am.  Dec.  58. 

•■'  Welsh  V.  Joy,  13  Pick.  477;  Allen  v.  Trimble,  4  Bibb,  21;  7  Am.  Dec.  726; 
post,  §  327. 

^  Elkiu  V.  People,  3  Scam.  207;  36  Am.  Dec.  541;  Robertson  v.  Dennis,  20 
111.  315. 

*  Clark  V.  Sawyer,  48  Cal.  133;  Lofland  v.  Ewing,  5  Litt.  42;  15  Am.  Dec. 
41;  Purl  r.  Duval,  5  Har.  &  J.  69;  9  Am.  Dec.  490;  Jackson  v.  Collins,  3  Cow. 
89;  Bcllingall  v.  Duncan,  3  Gilm.  480;  Holmes  v.  Mclndoe,  20  Wis.  689;  Sum- 
ner V.  Moore,  2  McLean,  59;  Fowble  v.  Rayberg,  4  Ohio,  56;  Kane  v.  McCoim, 
55  Mo.  181. 


155  A:^IENDING  writs  of  execution.  §63 

CHAPTER  VI. 

AMENDING   WRITS   OF  EXECUTION. 

§  63.  Power  liberally  exercised. 

§  64.  Power  extends  to  all  matters  of  form. 

§  65.  Amending  direction  to  the  officer. 

§  66.  Amending  omission  in  words  of  command. 

§  67.  Amending  to  conform  execution  to  judgment, 

§  68.  Amending  error  in  designating  the  return  day. 

§  69.  Amending  the  clause  of  attesta.tiou. 

§  70.  Amending  by  affixing  seal. 

§  71.  Time  within  which  amendment  may  be  made. 

§  71  a.     The  effect  of  amendments. 

§  72.  Persons  against  whom  amendments  may  be  made. 

§  63.  Power  of  is  Liberally  Exercised.  —  The 
poTv^er  of  courts  to  amend  executions  was,  until  a  com- 
paratively recent  date,  either  doubted  altogether,  or 
affirmed  with  great  hesitation.  Thus  Mr.  Bingham, 
in  his  work  on  judgments  and  executions,  says  nothing 
upon  this  subject,  except  the  following:  "But  it  seems 
a  judicial  writ  may,  in  some  instances,  be  amended  by 
the  roll,  on  leave  from  the  court."  ^  No  subsequent 
author,  in  his  treatment  of  this  topic,  can  hope  to  excel 
Mr.  Bingham  in  brevity,  caution,  and  uncertainty. 
But  the  power  to  amend  executions,  and  the  limits 
within  which  it  would  be  exercised,  were  much  better 
established  and  understood  in  Mr.  Bingham's  time 
than  his  cautious  sentence  and  his  single  citation  of 
authority  indicate.  At  the  present  day,  the  power  to 
amend  executions  so  as  to  correct  clerical  misprisions 
is  universally  conceded,  and  frequently  invoked.  ''In- 
deed,  it  is  very   difficult   to  prescribe  limits  to  this 

^  Bingham  on  Judgments  and  Executions,  186. 


§64  AMENDING  VfRUS  OF  EXECUTION.  156 

salutary  power  possessed  by  tlio  courts,  of  permitting 
amendments  in  their  process,  whether  mesne  or  final. 
It  is  a  power  exercised  for  the  promotion  of  justice, 
with  no  parsimonious  hand;  yet  where  its  allowance 
would  be  destructive  of  the  ris^hts  of  innocent  third 
persons,  the  court  will  scan  a\  ell  the  grounds  on  which 
its  action  is  soug^ht."^  "When  we  advert  to  the  doc- 
trine  of  amendments,  and  the  cases  which  have  been 
decided  on  that  subject,  it  will  be  perceived  that  the 
object  of  the  whole  s^'stem  is  to  provide  a  remedy  for 
casual  omissions,  or  nesfliofence  of  different  officers  of 
the  court;  in  a  word,  to  enable  the  party  to  do  that 
which  the  law  and  the  facts  in  the  case  would  have 
authorized  or  did  require  the  officers  to  have  done. 
The  decisions  on  this  subject  are  so  numerous,  and 
amendments  so  common,  and  I  may  almost  say  unlim- 
ited, that  the  difficulty  is  in  selecting  such  cases  as 
seem  most  directly  to  apply  to  the  subject  before  us."'' 

§  64.  Amendments  for  Matters  of  Form. — When 
we  come  to  examine  the  different  decisions  in  reference 
to  amending  executions,  we  find  them  so  various  and 
comprehensive  as  to  fully  justify  the  remarks  quoted 
in  the  preceding  section.  These  decisions,  though  not 
perfectly  harmonious,  are  as  nearly  so  as,  from  our  pre- 
vious knowledge  of  judicial  doubts  and  dissensions,  we 
could  expect  to  find  them.  In  the  chapter  on  the  form 
of  an  original  execution,  we  have  stated  that  every 
execution  usually  embraces  six  diflferent  parts.     We 

1  Cawthornr.  Knight,  11  Ala.  582;  McCollum  v.  Hubbert,  13  Ala.  284;  48 
Am.  Dec.  56;  Meyer  v.  Ring,  1  H.  Black,  541;  Simon  v.  Ouruey,  5  Taunt. 
605;  Atkinson  v.  Newton,  2  Bos.  &  P.  336;  Deloach  v.  State  Bank,  27  Ala. 
444.  Amen<lmeut3  may  be  made  in  matters  of  form,  but  not  of  substance. 
Blanks  v.  Rector,  24  Ark.  496;  88  Am.  Dec.  780. 

'  Bordeaux  v.  Treasurers,  4  McCord,  144. 


157  AMENDING  WRITS  OF  EXECUTION.  §65 

think  that  each  of  these  parts  may  be  amended,  at  any 
time,  where  the  amendment  proper  to  be  made  can  be 
ascertained,  either  from  reference  to  the  record,  or  to 
the  existing  law  prescribing  the  form  and  contents  of 
the  writ.  Hence,  if  the  writ  issues  in  the  name  of  the 
territory  of  C,  instead  of  in  the  name  of  the  state,^  or 
in  the  case  of  an  execution  against  the  person  of  the 
defendant  misnames  the  town  in  w^hich  the  county 
jail  is  situated,"  these  are  amendable  defects  which  do 
not  destro}^  the  efficiency  of  the  writ. 

p  65.     Amending  the    Direction  to  the    Officer.  — 

Where  a  writ  is  directed  to  an  improper  officer,  but 
executed  by  the  proper  officer,  the  error  in  the  direc- 
tion does  not  vitiate  the  writ,  and  may  be  cured  by 
amendments.^  Where  such  an  error  had  been  com- 
mited,  the  court  said :  "  This  is  a  judicial  writ,  and  the 
erroneous  direction  is  a  mere  misprision  of  our  own 
clerk.  Judicial  writs  are  more  absolutely  under  the 
control  of  the  court  than  original  writs.  Let  the 
amendment  be  made."*  Where  the  error  is  in  direct- 
ing the  writ  to  the  sheriff  of  one  county,  when  it  is 
intended  to  be  delivered  to  the  sheriff  of  another 
county,  there  is  some  doubt  whether  it  can  be  amended 
so  as  to  support  proceedings  taken  in  the  latter  county. 
In  Illinois,  it  has  been  held  that  this  is  not  a  proper 
case  for  an  amendment,  and  that,  as  the  sheriff  acted 
in  the  absence  of  any  writ  directed  to  him,  a  levy  and 
sale  made  by  him  are  incurably  void.^ 

>  Carnahan  v.  Poll,  4  Col.  190. 

«  Avery  ?;.  Lewis,  10  Vt.  3.32;  33  Am.  Dec.  203. 

*  Rollins  V.  Ricii,  27  Me.  5.57;  Waldeii  v.  Davison,  15  Wend.  578;  25  Am. 
Dec.  G02;  llcarsuy  v.  Braai)iiry,  9  M;ws.  95;  Woodr.  Ros.s,  II  Mass.  277. 

*  Caiiipliull  V.  Stiles,  9  Mass.  217.     See  Atkinson  v.  Gatclier,  23  Ark.  101; 
Simcoke  v.  Frederick,  1  Ind.  54;  Cook  ?-.  Morrell,  31  Mc.  120. 

*  By  bee  v.  Ash  by,  2  Gilin.  151;  43  Aui.  Dec.  47. 


§§  6a,  67  AMENDING  \^TIITS  OF  EXECUTION.  158 

§  66.  Amending:  Omission  of  Words  of  Command. 
—  Where  the  law  authorized  executions  to  he  levied 
on  lands  and  tenements  as  well  as  on  goods  and  chat- 
tels, a  writ  issued,  commanding  a  levy  on  goods  and 
chattels,  but  omitting  the  words  "lands  and  tene- 
ments." Under  this  writ,  lands  were  sold  and  a  con- 
veyance made  in  pursuance  of  the  sale.  About  fifteen 
years  afterward,  this  writ  and  deed,  having  been 
offered  in  evidence,  were  objected  to  for  this  defect, 
whereupon  the  court  held  as  follows:  "By  an  act 
of  the  legislature,  real  estate,  quoad  hoc,  is  put  on 
the  same  footing  with  personal,  and  a  plaintiff  has  the 
same  right  to  have  his  judgment  levied  as  well  of  the 
one  as  the  other.  An  execution  is  the  process  which 
the  law  gives  to  enforce  a  judgment,  and  ought  to 
pursue  the  law.  It  is  a  remedy  which  a  plaintiff  has 
a  riofht  to  ask  of  the  court,  and  which  the  court  is 
bound  to  extend  to  him  to  the  utmost  extent  of  the 
law.  The  omission,  therefore,  of  the  words  'lands  and 
tenements,'  etc.,  in  the  execution  in  the  case  of  Williams 
V.  Robertson,  is  clearly  a  clerical  mistake :  considering 
it,  therefore,  as  the  act  of  the  court,  and  not  of  the 
party,  I  should  be  disposed  to  think,  if  it  were  neces- 
sary^, that  the  court  would  —  even  at  this  day  —  enter- 
tain a  motion  to  amend  it,  so  as  to  render  it  consistent 
with,  and  make  it  as  efficient  as,  the  law  itself"  ^ 

§  67.  Amendments  to  Conform  Executions  to  the 
Judgments  on  which  they  were  entered  have  been  of 
very  frequent  occurrence.  By  such  amendments,  a  vari- 
ance in  the  name  of  the  plaintiff,"  or  of  the  defendant,^ 

^  Toomer  v.  Purkey,  1  Cons.  Ct.  Pv.  324;  12  Am.  Dec.  634;  Treasurers  v. 
Bordeaux,  3  McCord,  142. 

■^  Bank  of  Kentucky  v.  Lacy,  1  T.  B.  Men.  7;  Mackie  v.  Smith,  4  Taunt.  322. 

'  Brown  '/'.  Hammond,  Barnes,  10;  Vogt  v.  Ticknor,  48  N.  H.  242;  Gross  v. 
Mima,  03  Ga.  563. 


159  AMEMDING  WRITS  OF  EXECUTION.  §68 

or  in  the  date/  or  amount  ^  of  the  judgment,  may  be  cor- 
rected; or  the  name  of  a  party  may  be  entirely  stricken 
out  when  its  insertion  was  not  warranted  by  the  judg- 
ment; ^  or  a  name  improperly  omitted  may  be  inserted/ 
The  style  of  the  writ  may  also  be  amended  so  as  to 
agree  with  the  form  prescribed  by  statute/ 

§  68.     Amending  Errors  in  Regard  to  the  Return 

Day.  — Vv^here  the  law  designates  the  return  day, 
the  omission  to  designate  it  in  the  writ  is,  accord- 
ing to  the  majority  of  the  authorities,  a  mere  clerical 
misprision  of  no  serious  consequence.  Whether  the 
return  da}^  be  improperly  desig-nated  or  altogether 
omitted,  the  writ  need  not  be  quashed,  but  may  be 
amended  so  as  to  make  it  to  be  what  it  should  have 
been  in  the  first  instance. ° 

^  Chase  v.  Oilman,  15  Me.  66;  Hagerstown  Bank  v.  Weckler,  52  Md.  30; 
Woolworth  V.  Taylor,  62  How.  Pr.  90. 

2  Stevenson  v.  Castle,  1  Chit.  349;  Laroche  v.  Wasbrough,  2  Term  Rep. 
737;  Doe  v.  Rue,  4  Blackf.  263;  29  Am.  Dec.  368;  McCall  v.  Trevor,  4  Blackf. 
496;  Hutchens  v.  Doe,  3  Ind.  528;  Black  v.  Wistar,  4  Dall.  267;  Saunders  v. 
Smith,  3  Kelly,  121;  Sheppard  v.  Malloy,  12  Ala.  561;  Holmes  v.  Williams,  3 
Caines,  98;  Waggoner  v.  Dubois,  19  Ohio,  104;  Bissell  v.  Kip,  5  Johns.  100; 
Wright  r.  Wright,  6  :Me.  415;  Paine  v.  Spratley,  5  Kan.  525;  King  v.  Harri- 
son, 15  East,  615;  Murphy  v.  Lewis,  Hemp.  17;  Robb  v.  Halsey,  11  Smedes  & 
:M.  140;  Smith  r.  Keen,  20  Me.  411;  Hunt  v.  Loucks,  38  Cal.  376;  99  Am.  Dec. 
464;  Spence  v.  Rutledge,  11  Ala.  557;  Williams  v.  Waring,  5  Tyrw.  1128; 
Cromp.  M.  &  R.  354;  Bicknell  v.  Witherell,  1  Q.  B.  914;  Hinton  v.  Roach,  95 
N.  C.  106. 

*  Goodman  v.  Walker,  38  Ala.  142;  Deloach  v.  State  Bank,  27  Ala.  437; 
Green  v.  Cole,  13  Ired.  425;  Andress  r.  Roberts,  18  Ala.  .387;  Thompson  v. 
Bondurant,  15  Ala.  346;  50  Am.  Dec.  136;  Cawthom  v.  Knight,  11  Ala.  579. 

*  ShafiFer  v.  Watkins,  7  Watts  &  S.  219;  Morse  v.  Dewey,  3  N.  H.  535; 
Porter  v.  Goodman,  1  Cow.  413. 

*  Thompson  v.  Bickford,  19  Minn.  17;  H anna  v.  Russell,  12  Minn.  80. 
«Furtadei-.  Miller,  Barnes,  213;  Kidd  r.   Crowell,  17  Ala.  047;  Reubel  v. 

Preston,  5  East,  291;  Walker  ?•.  Hawkey,  1  Marsh.  399;  Harrcll  v.  Martin, 
4  Ala.  650;  Harris  v.  West,  25  Miss.  156;  Saunders  r.  Smith,  3  Kelly,  121; 
Cramer  v.  Van  Alstyne,  9  .Johns.  380;  Shoemaker  v.  Knorr,  1  Dall.  197;  Bcrthon 
V.  Keeley,  4  Yeates,  205;  Goode  v.  Miller,  78  Ky.  235;  Perkins  v.  Woodfolk,  8 
Baxt.  480. 


§§  69,  70  AMENDING  WKITS  OF  EXECUTION.  160 

§  69.  Tlie  Clause  of  Attestation  may  also  be 
amended,^  Thus  an  execution  tested  after  the  defend- 
ant's death  may  be  amended  so  as  to  bear  teste  of  the 
first  day  of  the  term;  ^  or  if  tested  out  of  term,  may  be 
amended  so  as  to  be  tested  in  term  time.^  So  if  the 
court,  place,  or  time  at  which  the  writ  is  to  be  returned 
is  improperly  stated,  the  writ  may  be  amended.*  And 
in  case  the  clause  of  attestation  be  entirely  omitted, 
it  may  be  inserted  as  an  amendment  to  the  original 
writ.^  So  if  the  writ  be  attested  in  tlie  name  of  the 
wrong  person  as  chief  justice,  it  may  be  amended  by 
striking  out  such  name  and  inserting  the  proper  one.® 
The  signature  of  the  clerk  may  be  added  as  ai\, 
amendment.^ 

§  70.  Amendment  by  Affixing  Seal. — There  are 
authorities  of  a  very  high  character^  affirming  that 
the  affixing  of  the  seal  of  the  court  is  essential  to  the 
validity  of  the  original  writ.     Where  this  view  is  sus- 

^  Haines  v.  McCormack,  5  Ark.  663;  People  v.  Montgomery  C.  P.,  18 
Wend.  633;  Newnham  ?'.  Law,  5  Term  Rep.  577;  Englehart  v.  Dunbar,  2 
Dowl.  P.  C.  202;  Rex  v.  Sheriff,  1  Marsh.  344;  Jackson  v.  Bowling,  10  Ark. 
578;  Ripley  v.  Warren,  2  Pick.  592. 

^  Center  t'.  Billinghurst,  1  Cow.  33;  Lune  v.  Beltznoover,  Taney,  110. 

'  Jones  V.  Cook,  1  Cow.  313;  Meyer  v.  Ring,  1  H.  Black.  541;  Berthon  v. 
Keeley,  4  Yeates,  205;  Baker  v.  Smith,  4  Yeates,  185;  Shoemaker  v.  Knorr,  1 
Dall.  197. 

*  Van  Dusen  v.  Brower,  6  Cow.  50;  Inman  v.  Griswokl,  1  Cow.  199;  Atkin- 
son V.  Newton,  2  Bos.  &  P.  336;  Hart  v.  Weston,  5  Burr.  2588;  Stone  v. 
Martin,  2  Denio,  185;  Hall  v.  Ayer,  9  Abb.  Pr.  220;  Hunt  v.  Kendrick,  2  W. 
Black.  836;  Simon  v.  Guruey,  5  Taunt.  005;  1  Mai-sh.  237;  Boyd  v.  Vander- 
kemp,  1  Barb.  Ch.  273;  Forward  v.  Marsh,  18  Ala.  645;  Harrison  v.  Agricul- 
tural Bank,  2  Smedes  &  M.  307. 

^  Mclntyre  v.  Rowan,  3  Johns.  144. 

*  Ross  r.  Luther,  4  Cow.  158;  15  Am.  Dec.  341;  Brown  v.  Aplin,  1  Cow. 
203;  United  States  v.  Hanford,  19  Johns.  173;  Henry  v.  Henry,  1  How.  Pr. 
167;  Spoonerw.  Frost,  1  How.  Pr.  192;  Nash  r.  Brophy,  13  Mot.  470. 

'  Whiting  V.  Beebe,  12  Ark.  421. 
^  See  §  46. 


161  MIENDING  WRITS  OF  EXECUTION.  §  71,  71  a 

tained,  a  motion  to  amend  by  affixing  the  seal  would  be 
unavailing,  for  no  amendment  could  operate  to  the 
extent  of  giving  life  to  a  writ  which  theretofore  was 
dead  in  law.  But  where  this  view  is  not  maintained, 
the  seal  of  the  court,  havinsf  been  omitted  at  the  issu- 
ing  of  the  writ,  may  afterward  be  affixed  as  an  amend- 
ment/ 

§  71.  The  Time  -witliin  Whicli  an  Execution  may 
be  amended  has  no  limit.  A  sale  of  property  may 
have  been  made  under  execution,  and  for  years  may 
have  been  confirmed  by  the  silent  acquiescence  of  all 
the  parties  in  interest.  After  time  has  thus  elapsed, 
the  execution  may  for  the  first  time  be  made  subject 
to  objection  for  some  amendable  informality.  In  such 
a  case,  the  court,  irrespective  of  the  lapse  of  time,  will 
either  disregard  the  informality  or  order  the  execution 
to  be  amended. 

§  71  a.    The  Effect  of  Amending  an  Execution  is 

generally  to  give  the  writ  the  same  operation  as  if 
originally  issued  in  due  form.^  Unless  this  were  the 
case,  the  amendment  would  accomplish  no  useful  pur- 
pose.    If  an  officer  is  sued  for  not  executing  a  writ  or 

*  Sawyer  v.  Baker,  3  Greenl.  29;  Bridewell  v.  Mooney,  25  Ark.  524;  Dom- 
inick  V.  Eacker,  3  Barb.  17;  Arnold  r.  Nye,  23  Mich.  28G;  CorAvith  v.  State 
Bank  of  Illinois,  18  Wis.  5G0;  8G  Am.  Dec.  793;  Purcell  v.  McFarland,  1  Ired. 
34;  35  Am.  Dec.  734;  Clark  v.  Hellen,  1  Ired.  421. 

^Cluggage  V.  Duncan,  1  Serg.  &  R.  Ill;  Morse  v.  Dewey,  3  N.  H.  5.35; 
Abels  V.  Westervelt,  24  How.  Pr.  284;  Bordeaux  v.  Treasurers,  3  McCord,  142; 
Toomer  v.  Purkey,  1  Cons.  Rep.  323;  12  Am.  Dec.  G34;  Porter  v.  Goodman,  1 
Cow.  413;  McCormack  v.  Melton,  1  Ad.  &  E.  331;  Thorpe  v.  Hook,  1  Dowl.  P. 
C.  501;  Sickler  v.  Overton,  3  Pa.  St.  325;  Jackson  v.  Anderson,  4  Wend.  474; 
Den  V.  Lecony,  1  Coxe  (N.  .J.),  Ill;  Hunt  v.  Kendrick,  2  W.  Black.  83G;  Mackio 
V.  Smith,  4  Taunt.  322;  Saunders  v.  Smith,  3  Ga.  121;  Phelps  r.  Ball,  1  Johns. 
Cas.  31;  Coleman's  Cases,  GG;  Cherry  v.  Woolard,  1  Ired.  438;  Suydam  v.  Mc- 
Coon,  Coleman's  Cases,  59;  Lewis  v.  Lindley,  28  111.  147;  Durham  v.  Ueaton, 
28  111.  2G4;  81  Am.  Dec  275. 
Vol.  I.-U 


§71  a  AMENDING  WRITS  OF  EXECUTION.  16  J 

for  ncglio'cnce  in  its  execution,  it  may  be  amended  pend- 
inof  that  action  or  durin<jj  the  trial/  If  a  sale  has  taken 
place,  the  writ  may  be  amended,  and  as  amended  may 
ever  thereafter  be  offered  in  support  of  such  sale.^ 
If  the  action  is  for  false  imprisonment,  the  defendant 
may  have  the  ca.  sa.  under  which  he  acted  amended  to 
conform  to  the  judgment  on  which  it  issued,  and  then 
justify  under  the  writ  as  amended.^  The  same  action 
may  be  taken  and  the  same  result  accomplished  where 
the  defendant  is  sued  for  trespass  in  levying  the  writ.* 
In  man}^  instances  the  amendment  of  an  execution  may 
properly  be  described  as  having  no  effect  whatsoever. 
When  the  amendment  is  to  cure  a  clerical  error  or  de- 
fect obvious  from  the  record,  or  in  other  words,  where 
the  record  discloses  the  error  and  supplies  the  data  for 
its  correction,  no  formal  amendment  is  necessary,  and 
the  writ  will  in  all  collateral  proceedings  be  treated  as 
amended.^  It  is  true,  there  are  some  cases  treating 
the  amendment  of  an  execution  as  a  matter  within 
the  discretion  of  the  court,  to  be  granted  or  refused 
according  to  its  notions  of  justice.^  If  this  view  were 
correct,  then  we  do  not  understand  how  a  writ  can  be 
treated  as  amended  in  advance  of  an  order  authoriz- 
ing its  amendment,  for  prior  to  that  time  it  cannot  be 
known   how    the    discretion    will    be    exercised.     But 

^  Hargrave  v.  Penrod,  Breese,  401;  12  Am.  Dec.  201. 

2  Lewis  V.  Lindlcy,  28  111.  147;  Durham  v.  Heaton,  28  III.  264;  81  Am.  Dec. 
275;  Jackson  v.  Anderson,  4  Wend.  474. 
^  Holmes  v.  Williams,  3  Caiues,  98. 

*  Porter  v.  Goodman,  1  Cow.  413. 

*  Denn.  Lecony,  1  Coxe  (N.  J.),  Ill;  Morse ?7.  Dewey,  3N.  H.  535;  Sheppard 
r.  Bland,  87  N.  C.  103;  Griswold  v.  Connolly,  1  Woods,  193;  Corthell  v.  Egery, 
74  Me.  41 ;  Cluggage  v.  Duncan,  1  Serg.  &  R.  Ill;  Portis  v.  Parker,  8  Tex.  23; 
58  Am.  Dec.  95;  Hunt  v.  Loucks,  38  Cal.  372;  99  Am.  Dec.  4G4;  Corwith  v. 
State  Bank,  18  Wis.  500;  80  Am.  Dec.  793;  Durham  v.  Heaton,  28  111.  264;  81 
Am.  Dec.  275;  AVright  v.  Nostraud,  94  N.  Y.  31,  and  other  cases  cited  in  §  72. 

<=  llayford  v.  Everett,  68  Me.  505. 


163  A^IENDING  WRITS  OF  EXECUTION.  §72 

where  the  amendment  is  proper,  we  conceive  that  its 
allowance  is  not  a  matter  of  discretion.  There  being 
a  valid  judgment  and  a  writ  obviously  issued  upon  it, 
though  tainted  by  some  mere  clerical  omission  or  de- 
fect, it  is  the  duty  of  the  court  to  give  due  effect  to 
such  judgment  and  writ,  and  all  proceedings  based 
thereon,  at  least  until  some  direct  motion  or  proceed- 
ing is  taken  to  quash  the  writ  or  proceedings  for  irregu- 
larity, and  even  then  the  better  practice  is  to  amend 
the  writ  and  purge  it  of  the  irregularity  rather  than  to 
destroy  it,  and  annul  the  proceedings  taken  for  its 
enforcement.^ 

§  72.  Persons  against  Whom  Amendments  may 
be  Made.  —  In  quite  a  number  of  cases  the  general  dec- 
laration is  made  that  an  amendment  of  a  writ  will  not 
be  made  when  it  will  prejudice  the  interests  of  third 
persons.^  On  examining  these  cases,  it  will  generally 
be  found  that  the  third  persons  against  whom  the  court 
refused  to  authorize  an  amendment  were  not  in  a  sit- 
uation entitling  them  to  any  partiality  from  the  court. 
They  were,  in  most  cases,  either  the  assignees  in  bank- 
ruptcy of  the  defendant,  or  his  personal  representatives, 
the  assiernment  on  the  one  hand  and  the  defendant's 
decease  on  the  other  having  taken  place  subsequently 
to  the  issue  of  the  writ  sought  to  be  amended.  Neither 
the  assignees  nor  representatives  were  purchasers  for 
value,  nor  in  any  respect  the   holders  of  any  special 

*  See  §  7S;  Cheney  r.  Bcall,  GO  Ca.  533;  but  in  this  state  the  code  provides 
that  the  amendment  of  an  execution  avoids  a  previous  levy  thereunder.  Beas- 
ley  V.  Boudon,  58  Oa.  154;  .Jones  v.  Parker,  CO  Ga.  500. 

■^  Brooks  V.  Hod.ion,  7  Man.  &  G.  529;  8  Scott  N.  R.  223;  Hunt  v.  Pasman, 
4  Maulc  &  S.  321);  Phillips  v.  Tanner,  G  Bing.  237;  3  Moore  &  P.  502;  Levitt 
V.  Kibblewhite,  G  Taunt.  483;  Webber  r.  llutcliins,  8  Mees.  &  W.  319;  John- 
8on  V.  Dobell,  1  Moore  &  P.  28;  Cape  Fear  Bank  v  .Williamson,  2  Ired.  147; 
Ohio  Life  Ins.  Co.  v.  Urbanalus.  Co.,  13  Oiiio,  220. 


§72  AMENDING  WRYTS  OF  EXECUTION.  1G4 

equities;  and  being  the  mere  successors  of  the  defend- 
ant's interests,  \ve  cannot  undei'stand  why  they  were 
in  condition  to  resist  anything  to  wliich  his  resistance, 
if  made  prior  to  the  assignment  or  decease,  would  have 
been  unavaihnor.  But  concedinaj;  the  rule  to  be  too 
well  established  by  authority  to  be  overthrown  by 
argument,  we  conceive  that  it  must  be  given  a  very 
restricted  application,  and  must  be  confined  to  those  in- 
stances where  a  motion  to  quash  the  writ  is  promptly 
made,  and  where  no  one  but  the  plaintiff  can  be  injured 
by  refusing  the  amendment.  There  are  two  classes  of 
third  persons  whose  interests  may  be  affected  by  a  pro- 
posed amendment,  namely,  those  who  have  derived 
title  from  the  defendant,  and  are  therefore  interested  in 
avoidino:  the  writ:  and  secondlv,  those  who  have  made 
purchases,  and  are  deraigning  title  by  aid  of  the  writ, 
and  therefore  interested  in  maintaining  its  validity. 
The  latter  class  will  no  doubt  be  protected  by  amending 
the  writ,  if  it  be  amendable.  In  fact,  it  seems,  so  far 
as  their  interests  are  involved,  superfluous  to  order 
an  amendment;  for  where  an  amendment  is  proper,  it 
will,  in  collateral  proceedings,  be  treated  as  if  actually 
made.^  In  determining  whether  an  amendment  should 
be  allowed  against  the  objection  of  third  persons,  an 
inquiry  must  be  made  whether  such  persons  had  any 
actual  or  constructive  notice  of  the  facts  upon  which 
the  claim  to  the  amendment  is  based.     If,  by  inspect- 

iDeu  V.  Lecony,  Coxe,  111;  Stephens  v.  White,  2  Wash.  (Va.)  203;  Wil- 
liams V.  Bro-n-n,  28  Iowa,  247;  Hunt  v.  Loucks,  38  Cal.  372;  99  Am.  Dec.  464; 
Cooley  V.  Brayton,  16  Iowa,  10;  Corwith  v.  State  Bank  of  Illinois,  18  Wis.  560; 
86  Am.  Dec.  793;  Durham  v.  Heaton,  28  111.  264;  81  Am.  Dec.  275;  Morrell  v. 
Cook,  31  Me.  120;  Doe  w.  Giddart,  4  How.  (Miss.)  267;  Toomer  v.  Purkey,  1 
Const.  Ct.  324;  12  Am.  Dec.  634;  Hubbell  w.  Fogartie,  1  Hill  (S.  C),  167;  Giles 
V.  Pratt,  1  Hill  (S.  C),  239;  26  Am.  Dec.  170;  Owen  v.  Simpson,  3  Watts,  87; 
Morse  v.  Dewey,  3  N.  H.  535;  Savin  v.  Austin,  19  Wis.  421. 


165  A^IENDING  WRITS  OF  EXECUTION.  §72 

ing  the  whole  record  in  the  ease,  they  could  have 
ascertained  that  the  proposed  amendment  would  be 
authorized,  they  must  be  regarded  as  charged  with 
constructive  notice,  and  as  holding  their  interest  in 
subordination  to  the  right  of  amendment.^  "The  sub- 
sequent purchaser  or  creditor  being  chargeable  with 
constructive  notice  of  what  is  contained  on  the  record, 
—  if  he  has  there  sufficient  to  show  him  that  all  the 
requisitions  of  the  statute  have  probably  been  complied 
with,  and  he  will,  notwithstanding,  attempt  to  procure 
a  title,  under  the  debtor,— he  should  stand  chargeable 
with  notice  of  all  facts  the  existence  of  which  is  indi- 
cated and  rendered  probable  by  what  is  stated  in  the 
record,  and  the  existence  of  which  can  be  satisfactorily 
shown  to  the  court.  And  in  such  cases  amendments 
should  be  allowed,  notwithstanding  the  intervening  in- 
terests of  such  purchaser  or  creditor."  ^ 

1  Fairfield  v.  Paine,  23  Me.  498;  Rollins  v.  Rich,  27  Me.  557. 
^Whittier  v.  Varney,  ION.  H.  301. 


§73  QUASHING  ^VRITS  OF  EXECUTION.  166 

CHAPTER  VII. 

QUASHING  WRITS  OF  EXECUTION. 

§  73.  Void  or  voidable  writs  may  be. 

§  73  a.     Classification  of  grounds  for  vacating. 

§  74.  Notice  for  motion. 

§  75.  Who  may  apply  for,  and  to  what  court. 

§  76.  Time  within  which  motion  for  should  be  made. 

§  77.  Grounds  for  quashing  for  errors  in  issuing. 

§  78.  Quashing  for  errors  in  form. 

§  79.  In  Georgia,  by  affidavit  of  illegality. 

§  SO.  Consequences  of  quashing. 

§  73.  Void  or  Voidable  Executions  maybe  Quashed. 
— Whenever  an  execution  has  been  improperly  issued, 
the  most  speedy  and  convenient,  and  in  most  cases  the 
only,  remedy  of  him  against  whom  it  runs,  is  by  motion 
to  quash  or  set  it  aside.  Executions  which  are  liable 
to  be  thus  vacated  are  divided  into  two  great  classes, 
namely,  void  and  voidable.  A  void  writ  is  one  which 
can  have  no  force  whatever,  unless  perhaps  as  a  justi- 
fication to  an  officer  having  no  notice  of  its  invalidity; 
while  a  voidable  writ  is  one  which,  though  erroneous, 
is  valid  until  vacated  by  some  proper  proceeding.  It 
is  true  that  these  definitions  may  be  of  no  material 
assistance  in  enabling  the  practitioner  to  determine 
whether  a  particular  writ  belongs  to  the  one  class  or  to 
the  other;  for  they  state  rather  the  result  of  the  writ 
when  adjudged  to  belong  to  one  of  these  classes  than 
the  indicia  by  which  it  may  be  properly  classified. 
Nor,  in  view  of  the  many  conflicting  decisions,  is  it 
possible  to  state  these  indicia  with  any  degree  of  con- 
fidence. An  execution  from  a  court  having^  no  author- 
ity  to  issue  executions,  or  from  a  court  no  longer  in 


167  QUASHING  WRITS  OF  EXECUTION.  §73  a 

existence,  or  upon  a  void  judgment,  or  a  judgment 
never  rendered,  would  undoubtedly  be  void.  The  same 
may  be  affirmed  of  executions  issued  by  some  one  hav- 
ing no  authority  to  issue  executions.  Executions  on 
satisfied  judgments;  or  against  a  defendant  whose 
property  cannot  be  taken  in  execution;  or  for  or 
against  a  sole  plaintiff  or  defendant  who  died  prior  to 
the  teste  of  the  writ,  when  there  has  been  no  revivor,  — 
are,  according  to  a  preponderance  of  the  authorities, 
void.  Various  errors  in  issuing  the  writ,  as  at  an  im- 
proper time,  or  in  an  improper  form,  may  be  urged  as 
grounds  for  declaring  it  void,  and  will  be  received  with 
different  degrees  of  attention  in  different  courts.  The 
decisions  upon  these  subjects  have  been  considered  in 
the  second  and  third  chapters  of  this  work.  When  a 
writ  is  void,  it  can  derive  no  validity  from  the  defend- 
ant's inaction.  He  is  not  compelled  to  move  to  have 
it  vacated.  He  may  disregard  it  altogether,  and  ma}', 
at  any  time,  successfully  resist  any  claims  based  upon 
it.  It  may,  however,  be  employed  to  cloud  his  title, 
or  to  subject  him  to  various  annoyances.  The  better 
course  for  him  is  to  have  it  quashed.  And  that  courts 
will  vacate  void  process,  and  also  process  based  on  void 
judgments,  and  thereby  relieve  the  defendant  from 
annoyance,  there  can  be  no  doubt.  ^ 

§  73  a.  Classification  of  Grounds  for  Vacating.  — 
An  execution  may  be  quashed,  —  1.  When  no  writ 
could  properly  issue  at  the  time  of  the  issuance  of 
the  writ  in  question;  and  2.  When,  though  a  writ  of 
execution  could  properly  issue,  the  one  sought  to  be 
vacated  was  issued  without  authority,  or  by  some  per- 
son not  authorized  to  issue  it,  or  is  irregular  in  form, 

'  Mabry  v.  State,  9  Ycrg.  208;  Avery  v.  Babcock,  35  111.  175. 


§74  QUASHING  WRITS  OF  EXECUTION.  168 

or  not  warranted  by  the  judgment  on  which  it  is  based. 
The  motion  to  qua^h  is,  in  no  sonse,  a  revisory  or  ap- 
pellate proceeding  directed  against  the  judgment.  An 
irregular  or  erroneous  judgment  will,  as  long  as  it  re- 
mains in  force,  support  an  execution.  Hence  an  exe- 
cution will  not  be  vacated  because  the  judgment  was 
erroneous  or  irregular,  nor  will  such  error  or  irregular- 
ity, antecedent  to  the  judgment,  be  considered  by  the 
court  on  motion  to  quash  the  execution.^  Nor  is  a 
motion  to  quash  the  execution  the  proper  mode  of  re- 
vising or  controUins:  the  acts  of  the  officer  who  is  seek- 
ing  to  enforce  it.  If  he  levies  upon  property  not 
subject  to  execution,  this  does  not  make  the  writ 
irregular.  The  remedy  in  such  case  is  by  some  pro- 
ceeding against  the  officer  to  recover  the  property 
improperly  seized.  His  unlawful  act  furnishes  no 
ground  for  vacating  the  writ.^ 

§74.  Notice  of  Motion  for. — Whenever  the  de- 
fendant seeks  to  have  a  writ  against  him  quashed,  he 
should  apply  to  the  court  on  motion,  giving  his  adver- 
sary notice  of  the  intended  application,  and  of  the 
grounds  upon  which  it  is  based.  The  party  whose  writ 
is  sought  to  be  vacated,  and  any  purchaser  deraigning 
title  therefrom,  are  entitled  to  this  notice,  and  any 
action  against  them  in  its  absence  is  erroneous.  This 
is  particularly  the  case  where  the  existence  of  the  ir- 
regularity complained  of  cannot  be  determined  from  an 
inspection  of  the  record.^     The  notice  should  be  served 

1  Schultze  V.  State,  43  Md.  295;  Galena  &  S.  W.  R.  R.  v.  Eiinor,  9  111.  App. 
159;  Hall  v.  Claggett,  G3  Md.  57;  Boyle  v.  Robinson,  7  Har.  &  J.  200;  Stephens 
V.  Wilson,  14  B.  Mon.  88. 

*  Hasty  V.  Simpson,  84  N.  C.  590. 

*  Dazey  v.  Orr,  1  Scam.  5.35;  Iron  v.  Callard,  1  A.  K.  Marsli.  423;  Bentley 
r.  Cummins,  8  Ark.  490;  Osburn  v.  Cloud,  21  Iowa,  2.38;  Eckstein  v.  Calder- 
wood,  34  Cal.  058;  Linn  v.  Hamilton,  34  N.  J.  L.  305;  Payne  v.  Payne's  Ex'r,  8 


169  QUASHING  WRITS  OF  EXECUTION.  §  75,  76 

personally  on  the  parties  interested.  After  judgment 
has  been  recovered,  the  authority  and  duty  of  the  plain- 
tiff's attorney  generally  cease.  Service  of  notice  of 
motion  to  quash  should  therefore  be  served  upon  the 
plaintiff,  and  not  upon  his  attorney  in  the  case,  unless 
it  appears  that  such  attorney  is  still  retained  by  plain- 
tiff, and  has  authority  to  represent  him  on  the  hearing 
of  the  motion.^ 

§  75.    Who  may  Apply  for,  and  to  What  Court. 

—  The  general  rule  that  none  but  the  parties  to  a  suit 
will  be  allowed  to  interfere  with  its  management  is 
equally  applicable  to  the  writ  of  execution  which  may 
be  issued  at  the  termination  of  the  action.  None  but 
the  parties  to  the  writ,  who  are  liable  to  be  injured  by 
it,  can  complain  of  irregularities  with  which  it  may  be 
infected.  Hence  no  stranger  to  the  action  can  ob- 
tain an  order  quashing  the  execution.^  Application  to 
quash  a  writ  must  always  be  presented  to  the  court 
whence  it  issued.  One  court  will  not  entertain  a 
motion  to  set  aside  the  process  of  another  court.^ 

§  76.     The  Time  within  Which  a  Motion  to  Quash 

an  execution  may  be  made  appears  to  have  no  limit. 
The  motion  may  be  made  and  granted  after  the  writ 

B.  Mon.  391;  Mann  v.  Nichols,  1  Snrcdes  &  M.  257;  State  Bank  v.  Marsh,  10 
Ark.  129;  McKissack  v.  Davis,  18  Ala.  315;  Irons  v.  McQuewen,  27  Pa.  St. 
190;  67  Am.  Dec.  450;  Lyster  v.  Brewer,  13  Iowa,  461;  McKinney  v.  Jones,  7 
Tex.  598;  58  Am.  Dec.  83. 

'  Duncan  v.  Brown,  15  S.  C.  414. 

'■^  Bunnell  v.  Noely,  43  111.  288;  Fiske  v.  Lamoreux,  48  Mo.  523;  Gouverneur 
V.  Warner,  2  San<l.  024;  Oakley  ij.  Becker,  2  Cow.  454;  Howlaml  v.  Ralph,  3 
Johns.  20;  Frink  ?•.  Morrison,  13  Abb.  Pr.  80;  Perrin  t-.  Bowes,  5  U.  C.  L.  J., 
0.  S.,  1.38;  Wallop  r.  Scarburgh.  5  Gratt.  1. 

'  Pettus  r.  Elgin,  11  Mo.  411;  McDonalds  Tillman,  17  Mo.  003;  Nelson  v. 
Brown,  23  Mo.  13;  Mellicr  v.  Bartlctt,  89  Mo.  134. 


§  77  QUASHING  WRITS  OF  EXECUTION.  170 

lias  boon  retimiocl  fully  executed/  except  in  Texas, 
where  such  motion  apjiears  not  to  be  entertained  after 
the  return  da}-,  and  the  actual  return  of  the  writ.^  But 
while  courts  have  the  power  to  quash  executions  at  any 
time,  tluy  are  not  disposed  to  exercise  this  power  in 
behalf  of  the  negligent.  They  require  motions  in  ordi- 
nary cases  to  be  made  and  prosecuted  with  diligence; 
aiid  where  the  error  complained  of  consists  in  a  mere 
irregularity,  any  considerable  delay  on  the  part  of  the 
applicant  will  be  treated  as  a  waiver  of  the  irregularity, 
and  an  irrevocable  renunciation  of  his  right  to  quash 
the  writ.^ 

§  77.  Grounds  for  Quashing. — We  have  already 
endeavored  to  show  the  time  and  circumstances  in 
which  executions  may  properly  issue;*  and  have  at  the 
same  time  attempted  to  show  the  consequences  of  any 
irregularity  in  such  issuing  when  the  writ  was,  by  the 
parties,  permitted  to  stand.  In  case,  however,  that  the 
party  against  whom  the  writ  runs  seeks  to  avail  himself 
of  its  erroneous  issuance,  he  may  do  so  by  a  motion  to 
quash;  and  such  motion,  at  least  when  promptly  made, 
will  ordinarily  be  granted.  Hence  a  motion  to  quash 
will  prevail  when  the  judgment  on  which  it  issued  was 
satisfied,^  or  the  writ  was  issued  by  the  clerk  without 

*  Pinckney  v.  Hcgeman,  53  N.  Y.  31;  Page  v.  Colemau,  9  Port.  275;  Isaacs 
V.  The  Judge,  5  Stew.  &  P.  40S. 

2  Mcader  Co.  r.  Aringdale,  58  Tex.  447. 

'  Henderson  v.  Henderson,  GG  Ala.  55G;  Bristow  v.  Payton,  2  T.  B.  Mon. 
91;  15  Am.  Dec.  134;  Fream  r.  Garrett,  24  Hun,  IGl;  Bowman  r.  Talman,  2 
Robt.  633;  Hapgoodr.  Goddard,  2G  Vt.  401;  McKinncy  v.  Scott,  1  Bibb,  155; 
Murphrey  v.  Wood,  2  Jones,  G3;  De  Crano  v.  Musselman,  27  Leg.  Int.  358; 
Berry  r.  Perry,  81  Ala.  103. 

*  See  chapter  II. 

*  McHeury  v.  Watkins,  12  111.  233;  Russell  v.  Hugunin,  1  Scam.  5G2;  33 
Am.  Dec.  423;  Adams  r.  Small  wood,  8  Jones,  25S;  Barnes  v.  Robinson,  4 
Yerg.  18(3;  Smock  v.  Dade,  5  Rand.  G39;  IG  Am.  Dec.  780. 


171  QUASHING  WRITS  OF   EXECUTION.  §77 

the  direction  of  the  proper  authority/  or  before  the 
time  for  issuing  had  arrived,^  or  after  a  year  and  a  day 
without  reviving  the  judgment,^  or  when,  in  the 
absence  of  such  revivor,  the  writ  was  tested  after  the 
death  of  a  sole  plaintiff,*  or  of  a  sole  defendant,^  or  after 
the  marriage  of  a  female,  she  being  sole  plaintift',^  or 
when  issued  after  the  defendant  had,  in  bankruptcy 
proceedings,  been  discharged  from  all  further  liability 
under  the  judgment;'  but  not  when  defendant  had 
merely  tendered  the  plaintiff  the  amount  of  the  judg- 
ment, without  bringing  the  mone}^  into  court.^  An 
execution  may  also  be  quashed  because  it  states  a  differ- 
ent rate  of  interest  from  that  stated  in  the  judgment,^ 
or  is  against  defendant  personally  when  it  ought  to  be 
against  him  as  surviving  trustee,^''  or  is  against  two  de- 
fendants for  amounts  for  which  they  are  severally 
liable,  or  is  issued  by  a  person  acting  as  clerk  without 

^  Shackleford  v.  Apperson,  6  Gratt.  451. 

'^  Allen  r.  Portland  Stage  Company,  8  Greenl.  207;  Bartlett  r.  Stinton,  L. 
R.  1  C.  P.  483;  3  L.  J.  Com.  P.,  N.  S.,  238;  Blashfield  v.  Smith,  27  Hua,  114. 

^  Bacon  v.  Red,  27  Miss.  469;  Bolton  v.  Landsdown,  21  Mo.  .^99;  Azcarati 
V.  Fitzsimmous,  3  Wash.  C.  C.  134;  Lytle  v.  Cinn.  Manf.  Co.,  4  Ohio,  459; 
Reynolds  v.  Corp,  3  Caines,  270;  Blayer  v.  Baldwin,  2  Wils.  82;  Syinpson  v. 
Gray,  Barnes,  197;  Noe  v.  Conyers,  6  J.  J.  Marsh.  514;  Goodtitle  v.  Badtitle, 
9  Dowl.  P.  C.  1009;  Moore  v.  Bell,  13  Ala.  4(39;  Trail  v.  Snouffer,  6  Md.  308. 

*  Wingate  v.  Gibson,  1  Murph.  492;  Harwood  v.  Murphy,  1  Green  (N.  J.), 
193. 

*  Bentley  v.  Cummings,  4  Eng.  487;  Davis  v.  Helm,  3  Smedes  &  M.  17; 
Harrington  r.  O'Reily,  9  Smedes  &  M.  216;  48  Am.  Dec.  704.  A  Jleri  facias 
issued  at  two  o'clock  p.  M.  was  set  aside  on  showing  that  the  defendant  died  at 
eleven  o'clock  A.  M.  of  the  same  day.  Chick  v.  Smith,  8  Dowl.  P.  C.  337;  4 
Jur.  86. 

*  Johnson  I".  Parmlee,  17  Johns.  271. 

'  Linn  r.  Hamilton,  .34  N.  J.  L.  305;  Davis  v.  Shapley,  1  Barii.  &  Adol. 
54;  Barrow  r.  Poile,  1  Barn.  &  Adol.  029;  Humphreys  v.  Kuiglit,  0  Biug.  572; 
Alcottr.  Avery,  1  Barb.  Cli.  347;  Milhous  v.  Aicardi,  51  Ala.  594. 

*  Shumaker  r.  Nichols,  6  Gratt.  592. 

*  Fowlkes  V.  Poppenheimer,  4  Lea,  422. 
"  Alger  V.  Conger,  ]  7  Hun,  45. 


§7S  QUASHING  WB.TIS  OF  EXECUTION.  172 

any  authority  to  so  act/  or  because  it  does  not  name 
the  person  whose  property  is  to  be  seized.'^ 

§  78.  Quasliing  for  Errors  in  Form.  —  The  quash- 
luci'  of  executions  wliich  were  authorized  to  be  issued  at 
the  time  wlien  they  were  sued  out,  but  which  are  not 
in  proper  form,  is  a  question  upon  which  the  practice 
of  the  courts  is  variant.  For  substantial  irregularities 
in  the  form  of  the  writ,  such  as  are  of  so  serious  a 
character  as  to  be  incurable  by  amendment,  there  can 
bo  no  doubt  of  the  propriety  of  setting  aside  the  whole 
writ.  But  what  irrecfularitics  are  substantial  in  this 
sense,  and  to  this  extent,  is  something  about  which  the 
courts  do  not  usually  agree,  as  we  have  shown  in  tlie 
chapter  on  the  form  of  original  executions.  The  vast 
majority  of  writs  liable  to  objection  for  matters  of  form 
are  capable  of  being  set  right  by  comparison  with  the 
judgment.  The  hiformality  is  usually  a  clerical  mis- 
prision for  which  the  parties  are  not  justly  blamable, 
^nd  which  is  not  so  culpable  that  it  ought  to  be  fol- 
lowed by  any  severe  penalty.  In  all  probability,  it 
has  not  injured  the  complainant;  and  if  capable  of 
inflicting  such  injury,  its  power  to  do  so  may  be 
destroj^'ed  by  an  amendment  making  it  conform  to  the 
judgment.  Numerous  cases  may,  no  doubt,  be  found 
in  the  reports,  in  which,  for  harmless  informalities  or 
variances,  writs  have  been  quashed.  The  decisions, 
however,  show  a  tendency,  strong  at  the  first  and  still 
increasing,  to  correct  rather  than  to  destroy;  to  re- 
spond to  a  motion  to  quash  by  refusing  such  motion, 
and  orderincr  the  writ  to  be  so  amended  as  to  free  it 


1  Taney  v.  Woodmansee,  23  W.  Va.  709. 
^  Haynes  v.  E,ichardson,  Gl  Ga.  390. 


173  QUASHING  WRITS  OF  EXECUTION.  §78 

from  all  objection,^  whenever  this  can  be  done  by  refer- 
ence to  the  record.  There  are  cases  which  seem  to 
affirm  the  general  proposition  that  an  execution  will  be 
quashed  for  a  variance  between  it  and  the  judgment.^ 
In  Kentucky,  when  an  execution  was  issued  for  too 
small  an  amount,  it  was  said  that  the  proper  remedy 
of  the  plaintiff  was  by  motion  to  cjuash.^  No  doubt 
there  are  other  reported  cases,  in  which  the  proposi- 
tion that  an  execution  may  be  quashed  because  for 
either  too  laro-e  or  too  small*  an  amount  finds  encour- 
agemeut.  But  the  proponderance  of  authority,  both 
English  and  American,  negatives  this  proposition,  and 
establishes  the  rule  that  for  variance  in  amount  an 
execution  may  be  corrected  by  the  record,  but  will  not 
be  entirely  set  aside.^  In  Texas,  an  error  in  the  style 
of  the  writ  has  been  spoken  of  as  a  possible  ground 
for  quashing,  but  no  positive  opinion  was  required  or 
given.^  In  Kentucky,  an  execution  in  detinue  may  be 
quashed  when  it  is  for  the  value  of  the  property,  in- 
stead of  beinof  for  the  return  or  for  the  value  in  case  a 
return  cannot  be  had/     Executions   have  also  been 

1  Newnham  v.  Law,  5  Term  Rep.  577;  Shaw  v.  Maxwell,  6  Term  Rep.  450; 
Monys  v.  Leake,  8  Term  Rep.  416,  note  a;  Stevenson  v.  Castle,  1  Chitty,  349; 
Saunders  v.  Ky.  Ins.  Co.,  4  Bibb,  471;  Mitchell  v.  Chesnut,  31  Md.  521;  Good- 
man V.  Walker,  38  Ala.  142;  Deloach  v.  State  Bank,  27  Ala.  437;  Thompson  v. 
Bondurant,  15  Ala.  34G;  50  Am.  Dec.  136;  Shepard  v.  Malloy,  12  Ala,  561. 

2  Noe  V.  Lawless,  6  J.  J.  Marsh.  514;  Reese  v.  Burts,  39  Ga.  565;  Newman 
V.  Willitts,  60  111.  519. 

3  Brown  v.  Julian,  5  J.  J.  Marsh.  312. 

♦  Cobbold  V.  Childer,  4  Scott  N.  R.  678;  4  Man.  &  G.  62;  1  Dowl.,  N.  S., 
726;  Webber  v.  Hutchins,  8  Mees.  &  W.  319;  1  Dowl.,  N.  S.,  95. 

*  Mouys  V.  Leake,  8  Term  Rep.  416,  note  a;  King  v.  Harrison,  15  East,  615; 
Murphy  V.  Lewis,  Hemp.  17;  Todd  v.  McClanahan's  Heirs,  1  J.  J.  Marsh.  356; 
Knight  V.  Applegate's  Heirs,  3  T.  B.  Mon.  338;  Commonwealth  v.  Hamilton,  4 
T.  B.  Mon.  133;  Sheppard  v.  Malloy,  12  Ala,  561;  Hunt  v.  Loucks,  38  Cal.  376; 
99  Am.  Dec.  464;  HoUingsworth  v.  Floyd,  2  Har.  &  G.  87;  Tilby  v.  Best,  16 
East,  163;  Boyd  v.  Boyle,  36  Kan.  512. 

«  Portis  V.  Packer,  8  Tex.  23;  58  Am.  Dec.  95. 
'  Boyd  V.  Williams,  5  J.  J.  Marsh.  56. 


§79  QUASHING  ANTxITS  OF  EXECUTION.  174 

quashed  for  varyin^^*  from  tlie  judgment  in  being 
against  a  pai-ty  not  named  in  the  judgment,'  or  in  in- 
correctly stating  the  name  of  tlie  plaintiff.^  An  erro- 
neous taxation  of  costs,  or  an  erroneous  indorsement 
on  an  execution,  furnislies  no  ground  for  quashing  the 
Avrit.  Tlie  former  error  may  be  corrected  on  motion 
to  retax  costs,^  and  the  latter  by  quashing  the  indorse- 
ment.* An  execution  not  subscribed  by  the  plaintiff 
nor  by  his  attorney,  where  the  law  requires  it  to  be 
subscribed  b}-  one  or  the  other,  may  be  quashed.^ 

§  79.    In  Georgia,  by  Affidavit  of  Illegality.  —  The 

judiciary  act  of  the  state  of  Georgia  of  tlie  year  1799 
makes  provisions,  "in  all  cases  where  execution  issued 
illegally,"  by  which  plaintiff  may  make  affidavit  of 
such  illegality,  and  thereb}^  procure  a  suspension  of 
the  proceedings  until  the  alleged  illegality  can  be  de- 
termined by  the  court.  This  act  was  construed  to  pro- 
vide a  remedy  where  there  was  anything  illegal,  either 
^n  issuing  the  execution,  or  in  subsequent  proceedings 
under  it.*^  This  was  a  forced  interpretation,  by  which 
the  word  "issued"  was  given  an  effect  equivalent  to 
the  words  "issued,  or  is  proceeding."  The  statute  has 
since  been  amended  in  such  a  manner  than  it  no  longer 
requires  judicial  aid  to  extend  its  provisions.'  As  the 
law  now  stands,  the  defendant  whose  property  or 
person  has  been  taken  under  execution  may  make  an 
affidavit  stating  the  illegality,  and  deliver  the  same  to 

'  Morrel  ?n  Earner,  4  Litt.  10;  Treadwcll  v.  HemJon,  41  Miss.  38;  Gray- 
ham  V.  RoberJs,  7  Ala.  719;  Bridges  v.  Caldwell,  2  A.  K.  Marsh.  195. 
'^  .Jennings  v.  Pray,  8  Ycrt,'.  So;  Smith  v.  Knight,  11  Ala.  018. 
^  Walton  V.  Brashears,  4  Bibb,  18. 

*  McGowan  v.  Hoy,  2  Dana,  347. 

*  Bonesteel  v.  Orvis,  23  Wis.  500;  99  Am.  Dec.  201. 
'  Robinson  v.  Banks,  17  Ga.  211. 

'  Code  of  Georgia,  sees.  3014-3021,  revised  by  Irwin. 


175  QUASHING  WRITS  OF  EXECUTION.  §79 

the  officer,  too^ether  with  security  for  the  forthcoming 
of  the  property  levied  upon.  The  proceedings  are  then 
stayed,  and  the  officer  must  return  the  execution  and 
bond  and  affidavit  to  court.  If  the  facts  stated  in  the 
affidavit  are  controverted,  a  jury  is  called  upon  to 
determine  such  controversy.  The  proceeding  by  ille- 
gality cannot  reach  any  proceedings  prior  to  the  judg- 
ment,^ unless  the  court  did  not  acquire  jurisdiction  of 
the  defendant.^  The  affidavit  must  contain  all  the 
grounds  of  illegality  of  which  the  defendant  intends  to 
complain.  No  amendment  will  be  allowed,^  except  for 
the  purpose  of  inserting  such  new  grounds  as  the  de- 
fendant by  his  oath  shows  were  not  within  his  knowl- 
ed'xe  when  the  orio-inal  affidavit  was  made.*  The 
affidavit  must  be  made  by  the  party  upon  whose  person 
or  property  the  writ  is  being  executed,  or  by  his  agent 
or  attorne}'.  It  cannot  be  made  by  a  co-defendant,  in 
his  own  name,  when  neither  he  nor  his  property  has 
been  molested  by  the  writ.^  The  grounds  upon  which 
the  defendant  can  prevail,  when  his  objections  are 
directed  to  the  issumg  of  the  writ,  seem  to  be  none 
other  than  would  be  sufficient  in  other  states  under  an 
ordinary  motion  to  quash  the  writ.  Thus  an  affidavit 
of  illeo:alitv  cannot  be  sustained  because  of  an  imma- 
terial  variance,®  nor  because  the  writ  was  signed  by  the 
deputy  clerk  and  without  affixing  seal  of  the  court. ^ 
But  the  affidavit  of  illegality  reaches  one  error  not  to 

1  Mangham  v.  Reed,  11  Ga.  137;  Emory  v.  Smith,  51  Ga.  323;  Mayor  v. 
Trustees,  7  Ga.  204;  Swinny  v.  Watkins,  22  Ga.  570. 

•■'  Parker  v.  Jennings,  20  Ga.  140;  Brown  v.  Gill,  49  Ga.  549. 
»  Hurst  V.  Mason,  2  Kelly,  307. 

*  Higgs  V.  Husoii,  8  Ga.  317. 

*  Van  Dyke  v.  Besspr,  34  Ga.  208. 

*  Mitchell  V.  Printup,  19  Ga.  579. 
'  Dover  r.  Akin,  40  Ga.  429. 


§  80  QUASHING  ^YRITS  OF  EXECUTION.  176 

be  remedied  by  a  motion  to  quash ;  namely,  an  error 
committed  by  the  officer  in  the  execution  of  the  writ.^ 

§  80.    The  Consequences  of   an  Order  Quashing 

a  writ  ma}^  be  considered,  first,  with  reference  to  the 
plaintifl'  and  his  attorneys;  and  second,  with  respect  to 
the  officers  who  have  acted  under  the  authority  of  the 
writ,  and  to  strangers  who  have  in  good  faith  made 
purchases  and  paid  money  at  sales  had  thereunder.  If 
an  unconditional  order  is  given  quashing  an  execution, 
the  plaintiff  and  his  attorney  are  left  in  no  better  a 
position  than  if  the  writ  had  never  issued.  If  they  or 
either  of  them  have  become  the  purchasers  of  property 
thereunder,  an  essential  muniment  of  their  title  is 
obliterated,  and  the  purchase  necessarily  falls  for  want 
of  support.  If  they  have  seized  upon  property,  or 
taken  the  defendant  in  execution,  their  act  can  no 
longer  be  justified,  and  they  may  be  pursued  as  tres- 
passers.^ With  respect  to  officers,  we  believe  the  rule 
is  of  universal  operation  that  they  may  justify  under 
a  writ  regular  on  its  face,  and  that  the  quashing  of  a 
writ  will  not  operate  retrospectively  so  as  to  make 
them  trespassers  for  acts  previously  done  under  its 
authority.  When  sales  have  been  made  under  execu- 
tion to  bona  fide  purchasers,  the  duty  as  well  as  the 
inclination  of  the  court  is  to  protect  tliem,  and  a  motion 
to  quash  the  execution  for  any  mere  error  or  irregu- 

1  Robinson  i;.  Banks,  17  Ga.  211;  Force  v.  Dalilonega  T.  &  L.  Co.,  22  Ga.  86. 

*  Freeman  on  Judgments,  sec.  104  b;  Turner  v.  Felgate,  1  Lev.  95;  Parsons 
V.  Loyd,  3  Wils.  .341;  2  W.  Black.  845;  Chapman  v.  Dyett,  11  Wend.  31;  25 
Am.  Dec.  598;  Kerr  v.  Mount,  28  N.  Y.  659;  Hayden  v.  Shed,  11  Mass.  500; 
Codrington  v.  Lloyd,  8  Ad.  &  E.  449;  3  Nev.  &  P.  442;  1  W.  W.  &  H.  358; 
2  Jur.  593;  Barker  v.  Braliam,  3  Wils.  368;  Young  v.  Birchcr,  31  Mo.  130;  77 
Am.  Dec.  038;  Sanders  v.  Ruddle,  2  T.  B.  Mon.  139;  15  Am.  Dec.  148. 


177  QUASHING  WRITS  OF  EXECUTION.  §  80 

larity  will  be  denied.^  But  even  should  the  motion  be 
granted,  its  operation  seems  not  to  extend  to  sales 
made  to  such  purchasers;  and  for  the  purpose  of  sup- 
porting such  sale,  the  quashed  writ  retains  its  original 
vitahty.^ 

1  Bryan  v.  Berry,  8  Cal.  130;  Day  v.  Graham,  1  Gilm.  435. 

2  Doe  V.  Snyder,  3  How.  (Miss.)  66;  32  Am.  Dec.  311;  Cox  v.  Nelson,  1  T.  B. 
Mon.  94;  15  Am.  Dec.  89;  Adamson  v.  Cummins,  5  Eng.  545;  Chambers  v. 
Stone,  9  Ala.  261. 

Vol.  I. -12 


SI  EXECUTION  ON  DORMANT  JUDGMENTS.  17S 


CHAPTER  VIII. 

rROCEEDINGS  TO  OBTAIN  EXECUTION  ON  DORMANT  JUDGMENTS. 

FIRST.  —  BY   SCIRK    FACIAS. 

§  81.  Object  ami  definition  of  the  writ. 

§  82.  In  what  actions  it  may  issue. 

§  8.3.  When  necessary. 

§  84.  Change  in  the  parties  other  than  by  death. 

§  85.  Change  in  parties  occasioned  by  death. 

§  86.  Parties  plaintiff. 

§  87.  Parties  defendant. 

§  88.  Form  of  the  writ,  and  amendments  thereto. 

§  89.  Service  of  the  writ. 

§  90.  Proceedings  on  return  of  the  writ;  defenses  received. 

§  91.  Time  in  which  the  writ  must  be  sued  out. 

§  92.  Irregular  writs. 

§  92  a.     Judgment  upon. 

§  93.  Second  scire  facias. 

§  94.  Form  of  execution  on.  scire  fadds. 

SECOND.  —  BY   MOTION. 

§  95.     Motion  and  notice  as  a  substitute  for  sciyt  facias. 

§  96.     Ou  death  of  one  of  the  parties. 

§  97.     On  judgment  dormant  by  lapse  of  time. 

§81.  Object  and  Definition. — Before  a  judgment  is 
either  satisfied  by  payment  or  barred  by  lapse  of  time, 
it  may  become  temporarily  inoperative  so  far  as  the 
right  to  issue  execution  is  concerned,  and  so  continue 
until  something  is  done  by  which  sucli  right  is  revived. 
In  this  condition  it  is  usually  called  a  dormant  judg- 
ment. This  dormancy  in  judgments  was,  at  the  com- 
mon law,  usuall}^  created  cither  by  a  change  in  the 
parties  i)laintiff  or  defendant,  or  by  tlie  lapse  of  time 
without  the  issuing  of  execution.  "  Where  any  new 
person  (that  is,  one  not  originally  party  to  the  judg- 
ment) is  to  be  charged  or  benefited  by  the  execution, 


179  EXECUTION  ON  DORMANT  JUDGMENTS.  §81 

or  where  more  than  a  year  and  a  day  have  elapsed 
since  the  signing  of  judgment,  and  that  delay  has  not 
been  caused  by  the  party  chargeable,  new  measures 
become  necessary  before  execution  can  be  proceeded 
in."^  There  were  also  cases  in  which  execution  was 
to  be  issued  in  certain  contingencies  only,  and  in  which 
it  became  necessary  to  establish  the  existence  of  the 
contingency  before  the  writ  could  be  regularly  sued 
out.  So  the  judgment  might  have  been  satisfied, 
through  fraud  or  mistake,  or  by  an  extent  upon  prop- 
erty not  belonging  to  the  defendant,  and  it  might 
therefore  be  necessary  to  set  aside  the  apparent  satis- 
faction and  to  obtain  leave  to  issue  further  execution. 
When  from  any  cause  it  became  necessary  to  apply  to 
a  court  for  a  revivor  of  the  right  to  issue  execution, 
the  remedy  of  the  plaintiff  was  by  scire  facias.  Ac- 
cording to  Mr.  Bingham's  definition,  "  sl  scire  facias  is 
a  judicial  writ,  founded  on  some  matter  of  record,  and 
having  for  its  object  the  prevention  of  undue  surprise 
by  interposing  itself  as  a  w^arning  between  judgment 
and  execution,  —  w^henever  any  new  party  is  to  be 
charged  or  benefited  by  such  execution;  whenever 
such  execution  is  contingent,  after  judgment  on  the 
existence  of  certain  circumstances,  to  be  first  proved 
by  the  party  charging  ;  and  lastly,  whenever  execution 
has  been  delayed  beyond  a  year  and  a  day  after  judg- 
ment signed,  that  delay  not  arising  from  the  party 
charged."^  But  perhaps  a  better  definition  of  scire 
facias,  as  the  term  will  be  used  in  this  chapter,  is  this: 

•  Bingham  on  Judgments  and  Executions,  118;  Foster  onScire  Facias,  6. 

*  Bingham  on  Judgments  and  Executions,  122.  It  was  formerly  held  that 
an  eleyil  might  issue  after  a  year  and  a  day.  Seymour  v.  Grenvillc,  Garth. 
283.  But  this  decision  has  since  been  overruled.  Putland  v.  Newman,  6 
Maule  &  S.  179;  Rutland  v.  Newman,  2  Chit.  384;  Brown  v.  C.  &  O.  Canal  Co., 
4  Hughes,  584. 


§81  EXECUTION  ON  DORMANT  JUDGMENTS.  180 

It  is  a  writ  issued  out  of  the  court  wherein  a  judg- 
ment has  been  entered^  or  to  which  the  record  has 
been  removed,  reciting  such  judgment,  suggesting  the 
grounds  requisite  to  entitle  plaintiff  to  execution,  and 
requiring  the  defendant  to  make  known  tlie  reason,  if 
any  there  be,  why  such  execution  should  not  issue.^ 
"The  writ,  therefore,  presents  the  plaintiff's  whole 
case,  and  constitutes  the  declaration  to  which  the  de- 
fendant must  plead."  ^  ''A  scire  facias  to  revive  a  judg- 
ment is  not  an  original  but  a  judicial  writ,  founded  on 
some  matter  of  record,  to  enforce  execution  of  it ;  and, 
properly  speaking,  is  only  the  continuation  of  an 
action,  —  a  step  leading  to  the  execution  of  a  judg- 
ment already  obtained,  and  enforcing  the  original  de- 
mand for  which  the  action  was  brought.  It  creates 
nothing  anew,  but  may  be  said  to  reanimate  that 
which  before  had  existence,  but  whose  vital  powers 
and  faculties  are,  as  it  were,  suspended,  and  without 
its  salutary  influence  would  be  lost."  *  A  scire  facias 
is  sometimes  and  for  some  purposes  spoken  of  as  an 

^  A  scire  facias,  being  founded  on  some  record,  must  be  issued  out  of  the 
court  where  that  record  is.  Hence  a  scire  facias  to  obtain  execution  on  a 
judgment  must  issue  out  of  and  be  returnable  to  the  court  where  the  record 
of  such  judgment  is,  and  whence  the  execution  must  issue  if  the  plaintiff  in 
the  scire  facias  i)revails.  Walker  v.  Wells,  17  Ga.  547;  63  Am.  Dec.  252; 
Grimkev.  Mayrant,  2  Brev.  202;  Osgood  v.  Thurston,  23  Pick.  110;  Tindall  v. 
Carson,  1  Harr.  (N.  J.)  94;  Barron  v.  Pagles,  6  AJa.  422;  Carlton  v.  Young, 
1  Aiken,  332;  W^ilson  v.  Tierman,  3  Mo.  577;  Vallance  v.  Sawyer,  4  Greenl. 
62;  Treasurer  v.  Erwin,  Brayt.  218;  2  Sellon's  Practice,  198;  Foster  on  Scire 
Facias,  19;  Dougherty's  Estate,  9  Watts  &  S.  189;  42  Am.  Dec.  396;  Perkins 
V.  Hume,  10  Tex.  50;  State  v.  Brown,  41  Me.  535;  State  v.  Kinne,  39  N.  H. 
129;  Gibson  v.  Davis,  22  Vt.  374. 

•^  Bingham  on  Judgments  and  Executions,  123,  124. 

»  Bouv.  Diet.,  tit.  Scire  Facias,  5;  Hicks  v.  State,  3  Pike,  313;  Blake  v. 
Dodemead,  2  Strange,  776;  Ogden  v.  Smith,  14  Ala.  428;  Jacksou  v.  Tanner, 
18  Wend.  526. 

♦  Brown  v.  Harley,.2  Fla.  164;  2  Sellon's  Practice,  188. 


181  EXECUTION  ON  DORMANT  JUDGMENTS.  §82 

action.^  But  the  object  sought  and  the  result  accom- 
phshed  by  a  scire  facias  to  revive  a  judgment  both 
show,  beyond  all  doubt,  that  it  is  not  a  new  action, 
but  merely  a  continuation  of  an  old  one.^  No  cause  of 
action  beyond  the  old  judgment  can  be  asserted.  No 
grounds  of  defense  anterior  to  the  old  judgment  can 
be  brought  forward.  No  relief  beyond  that  embraced 
in  the  old  judgment  can  be  obtained;  and  finally,  the 
judgment  entered  upon  the  scire  facias  is  simply  "that 
the  plaintiff  have  execution  for  the  judgment  men- 
tioned in  the  said  scire  facias,  and  his  costs."  ^  In 
Pennsylvania,  the  practice  in  scire  facias,  and  the  judg- 
ment therein,  are  different  from  what  they  are  under 
common-law  forms  of  procedure,  and  accompHsh  re- 
sults very  similar  to  those  brought  about  by  an  action 
on  a  judgment.* 

§  82.  In  What  Actions  may  be  Sued  out.  —  By  the 
common  law,  a  plaintiff  who  failed  to  take  out  execu- 
tion in  a  personal  action  within  a  year  and  a  day  had 

1  Fenner  v.  Evans,  1  Term  Rep.  267;  Winter  v.  Kj-etchman,  2  Term  Rep. 
46;  FarrelU'.  Gleeson,  11  CI.  &  F.  702;  Bilbo  n  Allen,  4  Heisk.  31;  Swancy 
V.  Scott,  9  Humph.  340;  State  Bank  v.  Vance,  9  Yerg,  471;  Howard  v.  Randall, 
58  Vt.  564. 

2  Dickey  v.  Craig,  5  Paige,  283;  Dickinson  v.  Allison,  10  Ga.  557;  Reynolds 
V.  Rogers,  5  Ohio,  109;  Potter  v.  Titcomb,  13  Me.  36;  Treasurers  v.  Foster,  7 
Vt.  52;  Wolf  V.  Pounsford,  4  Ham.  397;  Comstock  v.  Holbrook,  16  Gray,  111; 
Ingram  v.  Belk,  2  Strob.  207;  Wright  v.  Nutt,  1  Term  Rep.  388;  Phillips  v. 
Brown,  6  Term  Rep.  283;  Denegre  v.  Haun,  13  Iowa,  240;  81  Am.  Dec.  480; 
Fitzhugh  V.  Blake,  2  Cranch  C.  C.  37;  Hopkins  v.  Howard,  12  Tex.  7;  Foster 
on  Scire  Facias,  11,  18;  Cocks  v.  Brewer,  1 1  Mees.  &  W.  56;  2  Dowl.,  N.  S.,  759; 
Adams  v.  Rowc,  11  Mo.  89;  25  Am.  Dec.  266;  Carter  v.  Carringer,  3  Yerg.  411; 
24  Am.  Dec.  585. 

*  Vredenbcrg  v.  Snyder,  6  Iowa,  39;  Woolston  v.  Gale,  4  Halst.  32;  Camp 
V.  Gainer,  8  Tex.  372;  Tindall  v.  Carson,  1  Har.  &  J.  94;  Murray  v.  Baker,  5 
B.  Mon.  172;  Walton?-.  Vanderhoof,  Penn.  73;  Hanly  v.  Adams,  15  Ark.  232. 

*  Custer  V.  Detterer,  3  Watts  &  S.  28;  Collingwood  v.  Carson,  2  Watts  & 
S.  220;  Sliacfer  v.  ChUd,  7  Watts,  84;  Maua  v.  Maus,  5  Watts,  315;  Fries  v. 
Watson,  5  Serg.  &  R.  220. 


§S-2  EXECUTION  ON  DORMANT  JUDGMENTS.  IS'2 

no  means  of  obtaining  execution  upon  that  judgment. 
The  right  to  execution,  when  once  lost  through  his 
dela}",  could  not  be  restored.  His  only  remedy  was  to 
commence  an  action  on  hi:s  judgment,  and  thereby  pro- 
cure a  new  judgment.  The  necessity  of  bringing  a 
new  action  was  obviated  by  the  statute  Westminister 
2,  c.  45,  by  which  a  scire  facias  was  given  in  all  per- 
sonal actions.^  Independently  of  statute,  the  right  to 
a  scire  facias  to  obtain  execution  of  a  judgment  in  a 
real  action  was  accorded  by  the  common  law.  And 
this  remark  is  equally  true  of  actions  of  ejectment  and 
actions  of  a  mixed  nature,  in  all  of  which  scire  facias 
was  autliorized  and  required  to  obtain  execution  after 
a  year  and  a  day."  It  is  said  that  there  are  some 
actions  in  which  execution  may  be  taken  out  after  a 
year  and  a  day  without  a  scire  facias.  "It  is  well  set- 
tled that  it  does  not  apply  to  judgments  entered  by 
confession  under  a  warrant  of  attorney,  but  only  to 
actions,  and  judgment  thereon  by  default,  confession,  or 
on  demurrer,  under  the  statute  of  8  and  9  William 
III,  c.  11,  sec.  8."^  In  Kentucky,  it  has  been  held 
that  where  a  decree  is  for  the  payment  of  a  sum  cer- 
tain, and  may  therefore  be  enforced  by  execution,  it 
may  be  revived  by  scire  facias.^  But  in  other  states 
the  opinion  prevails  that  as  a  scire  facias  is  a  purely 
legal  proceeding,  it  cannot  be  employed   in  a  case  in 

*  This  statute  is  in  force  in  Florida.  Union  Bank  v.  Powell,  3  Fla.  175;  52 
Am.  Dec.  3G7.  By  the  code  of  Georgia,  a  scire  facias  may  he  issued  I)y  the 
clerk  of  the  court  in  vacation,  on  the  oral  demaiad  of  plaintiff.  Hill  v.  Ncal,  52 
Ga.  92. 

2  2  Sellon's  Practice,  189;  Hess  v.  Sims,  1  Yerg.  143;  Withers  v.  Harris,  2 
Ld.  P.aym.  80G;  1  Salk.  238;  7  Mod.  04;  Proprietors  v.  Davis,  1  Greenl.  309; 
Proctor  V.  Johnson,  2  Salk.  GOO;  Foster  on  Scire  Facias  2-G. 

'  Jones  V.  Dilworth,  03  Pa.  St.  447;  Longstreth  v.  Gray,  1  Watts,  60;  Skid- 
more  V.  Bradford,  4  Pa.  St.  296. 

*  Logan  V.  Cloyd,  1  A.  K.  Marsh.  201. 


183  EXECUTION  ON  DORMANT  JUDGMENTS'.  §82 

equity,  unless  authorized  by  statute/  nor  to  revive  a 
decree  of  a  probate  court.^  In  suits  for  divorce,  the 
wife  is  often  awarded  alimony  not  payable  in  one  gross 
sum;  but  at  stated  and  frequently  recurring  periods, 
and  the  question  has  arisen  whether  the  payment  of 
such  sums  may  be  enforced  by  scire  facias  as  w^ell  as 
by  attachment  for  contempt.  In  such  a  case,  it  seems 
clear  that  execution  cannot  issue  as  a  matter  of  course, 
for  it  may  be  that  some  contingency  has  arisen  under 
w^hich  the  wife  has  no  longer  any  right  to  exact  ali- 
mony, or  it  may  have  been  paid  as  directed  in  the 
decree.  Some  notice  ought  to  be  given  the  party 
claimed  to  be  in  default  before  any  writ  is  issued 
against  his  person  or  property.  The  proceeding  by 
scire  facias  is  well  adapted  to  giving  the  requisite 
notice,  and  there  seems  to  be  no  doubt  that  it  is  an 
appropriate  and  perhaps  the  exclusive  proceeding  in 
such  cases.^  This  remark  is  also  true  with  respect  to 
judgments  at  law,  by  which  sums  of  money  are  recovered 
payable  in  installments.*  It  is,  however,  in  all  cases 
where  resort  is  had  to  this  remedy,  necessary  to  show 
that  there  is  a  judgment  or  order  establishing  the 
plaintiffs  right  to  a  fixed  definite  sum  of  money,  the 
amount  of  which  can  be  ascertained  by  inspecting 
the  record  and  making  the  computations  justified 
thereby.  If  parol  or  other  evidence  not  found  in  the 
record  must  first  be  heard  to  enable  the  court  to  deter- 
mine the  amount  of  plaintiff's  recovery,  the  remedy  by 
scire  facias  cannot  be  sustained.^ 

^  Curtis  V.  Haun,  14  Ohio,  185;  JeflFrcys  v.  Yarborough,  1  Dev.  Eq.  506. 
»  Kirby  v.  Anders,  2G  Ala.  4G(5;  Hurst  ?^.  Williamson,  42  Ala.  2'JG. 
'  Morton  v.  Morton,  4  Cush.  518. 

♦  Collins  V.  Collins,  2  Burr.  820;  Willoughby  v.  Swinton,  6  East,  550. 
»  Chesnut  v.  Chesnut,  77  111.  34G. 


§83  EXECUTION  ON  DORMANT  JUDGMENTS.  184 

§  83.  When  Necessary. — We  have  already  shown 
that  scire  facias  issued  in  three  cases:  1.  To  revive 
an  ordinary  judgment  between  the  jiarties;  2.  To 
obtain  execution  where  a  new  party  was  to  be  charged 
or  boneiited;  and  3.  To  obtain  execution  on  a  con- 
tingent judgment  upon  the  happening  of  the  contin- 
gency. In  this  chapter  we  shall  treat  only  of  the  first 
and  second  classes  of  cases.  In  the  chapters  on  issuing 
original  and  alias  writs,  we  have  already  considered  in 
what  instances  it  is  necessary  to  sue  out  a  scire  facias 
between  the  original  parties  to  the  judgment;  and 
have  found  that,  as  to  original  writs,  the  scire  facias 
was  necessary  after  a  lapse  of  a  year  and  a  day, 
except  where  the  delay  had  been  occasioned  by  the 
defendant;^  while  if  the  original  issued  within  a  year 
and  a  day,  and  was  returned,  the  right  to  issue  alias 
writs  could  be  continued  to  any  distance  of  time  during 
the  life  of  the  judgment.^  Within  a  year  and  a  day, 
it  often  became  necessary  to  obtain  execution  by  scire 
facias,  even  as  between  the  original  parties.  The  judg- 
ment might  be  satisfied  through  fraud  or  mistake,  or 
by  a  sale  to  plaintiff  of  property  to  which  defendant 
had  no  title.  In  these  and  other  cases,  where  the 
plaintifl"s  right  to  execution  seemed  to  be  extinguished, 
but  in  which  he  had,  in  fact,  obtained  no  satisfaction, 

»  See  §§  27,  28;  also  2  Sellon's  Practice,  189;  Foster  on  Scire  Facias,  8-10, 
66-97;  Tidd's  Pr.  1104. 

»  See  §51;  also  2  Sellon's  Practice,  189;  Tidd's  Pr.  1104;  Reed  w.  Williams, 
3  A.  K.  Marsh.  521;  Dodge  v.  Casey,  1  Miles,  l.S;  Clemens  v.  Brown,  9  Mo. 
718;  Blayer  v.  Baldwin,  2  Wils.  83;  Seymour  v.  Greenvill,  Carth.  283;  Thorp 
V.  Fowler,  5  Cow.  446;  Downsman  v.  Potter,  1  Mo.  518;  Craig  v.  Johnson, 
Hardin,  520;  Cook  v.  Batthurst,  2  Show.  235;  Aires  v.  Hardress,  1  Strange, 
100;  Scull  V.  Godbolt,  4  Ala.  .326;  Bank  of  Mississippi  v.  Catlett,  5  How. 
(Miss.)  175;  Linilell  v.  Benton,  0  Mo.  361;  Jewett  v.  Hoogland,  30  Ala.  716; 
Abbey  v.  Comm.  Bank,  31  Miss.  434;  Foster  on  Scire  Facias,  84;  Messick  v. 
Rusael,  3  Harr.  13;  Jordan  v.  Petty,  5  Fla.  326;  Bracken  v.  Wood,  12  Ark.  005; 
Kellogg  V.  Buckler,  17  Ga.  187;  Strawbridge  v.  Mann,  17  Ga.  454. 


185  EXECUTION  ON  DOR^MANT  JUDGMENTS.  §  84 

or  but  a  partial  satisfaction,  he  could,  by  scire  facias, 
bring  the  defendant  before  the  court,  vacate  the  entry 
upon  the  record,  or  make  it  conform  to  the  facts,  and 
obtain  execution/  In  Texas,  a  scire  facias  may  become 
necessary,  or  at  least  advisable,  before  the  judgment 
has  become  so  dormant  that  execution  cannot  issue 
thereon.  By  the  statute  of  that  state,  an  execution 
may  issue  at  any  time  within  ten  years  after  the  issu- 
ing of  the  last  preceding  execution ;  but  the  lien  of  the 
judgment  becomes  inoperative  unless  execution  issues 
"within  one  year  from  the  first  day  when  it  might 
issue."  The  lien  after  becoming  inoperative  may  be 
revived  by  scire  facias,  though  the  judgment  is  not  dor- 
mant in  the  sense  that  no  execution  can  issue  upon  it.^ 

§  84.  When  the  Parties  have  been  Changed  with- 
out Death  of  Either.  — The  changes  in  the  parties  to 
a  judgment  which,  at  the  common  law,  rendered  a 
scire  facias  essential,  usually  occurred  through  the 
death  either  of  a  plaintiff  or  of  a  defendant,  and  some- 
times, but  more  rarely,  by  the  introduction  of  a  new 
party  by  other  means  than  by  the  death  of  either  of  the 
original  parties.  The  latter  class  of  cases  was  created 
chiefly,  if  not  exclusively,  by  either  marriage  or  bank- 
ruptcy. If  a  feme  sole  recovered  judgment,  "and  she, 
before  execution  taken  out,  marries,  the  husband  and 
wife  must  sue  out  a  scire  facias  and  get  judgment  thereon 
quod  haheant  execuiionem;  and  if,  after  such  judgment, 
but  before  execution,  the  wife  dies,  the  husband  alone 
may  hav  e  a  scire  facias  and  go  on  to  execution. "  ^    By  the 

1  See  §§  53,  54;  also  Arnold  v.  Fuller,  1  Plam.  458;  Steward  v.  Allen,  5 
Grecnl.  103;  Wilson  v.  Green,  19  rick.  433;  Foster  on  Scire  Facias,  47-57j 
Dewing  r.  Duraut,  10  Gray,  29;  Keith  v.  Proctor,  8  Baxt.  189. 

2  Masterson  v.  Cundifif,  58  Tex.  472. 

^  2  Sellou's  Practice  194;  Bingham  on  Judgments  and  Executions,  138; 
Johnson  V.  Parmlee,  17  Johns.  271;  Woodyer  r.  Freshman,  1  Salk.  IIG. 


§85  EXECUTION  ON  DORMANT  JUDGMENTS.  186 

scire  facias  the  judgment  becomes  the  property  of  the 
husband.  "Sd,  vice  versa,  if  judgment  bo  recovered 
against  a  feme  sole,  and  she  marries,  a  scire  facias  must  be 
sued  out  against  the  husband  and  wife,  and  judgment 
had  against  them  ;  and  if  tlie  wife  then  dies,  a  new  scire 
facias  may  issue  against  the  husband  only,  and  he  will 
be  changeable,  though  he  was  not  liable  upon  the  first 
judgment."  ^  "  In  cases  of  bankruptcy,  a  scire  facias  is 
necessary  before  proceeding  to  execution,  inasmuch  as 
a  new  party  (the  assignees)  are  benefited  by  the  execu- 
tion, and  ought  therefore  to  show  that  they  have  due 
authority  to  assume  that  benefit."^ 

§  85.  Change  in  the  Parties  by  Death.  —  Whether  the 
death  of  a  plaintiff  or  of  a  defendant  renders  a  scire  facias 
necessary  is  to  be  determined  by  ascertaining  whether, 
through  such  death,  a  new  party  is  charged  or  bene- 
fited by  the  judgment.  Whenever  a  sole  plaintiff  or  a 
sole  defendant  dies,  it  is  obvious  that  the  judgment 
cannot  be  enforced  without  affecting  some  new  part}'". 
Here,  then,  it  is  clear  that  a  scire  facias  is  necessary. 
Upon  the  death  of  one  of  several  co-plaintiffs  or  co- 
defendants  in  a  personal  action,  the  doctrine  of  sur- 
vivorship applies.  The  judgment,  on  the  death  of  one 
of  the  plaintiffs,  may  be  executed  for  the  benefit  of  the 
survivors,  in  which  case,  as  no  new  party  is  benefited, 
no  scire  facias  need  be  prosecuted.  On  the  death  of  one 
of  the  defendants  in  a  personal  action,  satisfaction  may 
be  sought  of  the  survivors;  in  which  case  a  revivor 
would  be  useless.  If  satisfaction  be  sought  from  the 
property  of  the  deceased  defendant,  a  new   party  is 

^2  Sellon's  Practice,  194;  Milea's  Case,  1  jMod.  179;  Obrian  v.  Ramm,  Carth. 
30;  3  Mod.  186. 

'^Bmgham  on  Judgments  and  Executions,  141;  2  Sellon's  Practice,  195. 


187  EXECUTION  ON  DORMANT  JUDGMENTS.  §85 

necessarily  interested,  and  must  first  be  proceeded 
against  by  scire  facias.  But  in  all  actions  pertaining 
to  the  possession  or  title  of  real  estate,  the  death  of 
one  of  several  plaintiffs,  or  of  one  of  several  defend- 
ants, introduces  some  new  party  in  interest,  and 
renders  a  scire  facias  indispensable.^  With  respect 
to  the  persons  who  must  be  proceeded  against  by  scire 
facias,  after  the  death  of  a  defendant,  the  law  must  be 
consulted  to  ascertain  whose  interests  may  be  affected 
by  the  execution.  If  the  law  is  such  that  the  prop- 
erty sought  to  be  reached  descends  to  the  heirs  alone, 
the  personal  representatives  need  not  be  made  parties; 
and  if,  on  the  other  hand,  it  descends  to  the  personal 
representatives  alone,  the  heirs  need  not  be  made 
parties.  The  question  has  arisen  whether  on  the 
death  of  one  of  several  defendants,  asfainst  whom 
judgment  has  been  rendered  on  a  joint  contract,  any 
scire  facias  can  issue  against  the  representatives  of  the 
decedent.  Against  the  issuing  of  such  writ  it  has 
been  urged  that  on  the  death  of  one  of  several  parties 
to  a  joint  contract  his  executor  or  administrator  is  dis- 
charged from  all  liability,  and  only  the  survivors  re- 
main answerable  to  proceedings  for  its  enforcement;  ^ 
on  the  other  hand,  it  has  been  held  that,  in  such  a 
case,  the  plaintiff  might  have  a  scire  facias  framed  on 
the  special  matter,  and  proceed  against  the  survivor 
and  the  personal  representatives  of  the  deceased,  if 
personalty  were  sought  to  be  seized,  or  against  the  sur- 
vivor and  the  heirs  and  terre-tenants  of  the  decedent, 

*  Foster  on  Scire  Facias,  175-177;  Withers  v.  Harris,  7  Mod.  68;  Sir  Wil- 
liam Herbert's  Case,  .3  Coke,  14;  Lainptoiiv.  CoUingwootl,  4  Mod.  315;  WrigUt 
V.  Maddock,  8  Q.  B.  122;  Dibble  v.  Taylor,  2  Speers,  308;  42  Am.  Dec.  308. 

"Stoner  v.  Stroman,  9  Watts  &  S.  85;  Howe  v.  Gilbert,  2  Bail.  306. 


§SG  EXECUTION  ON  DORMANT  JUDGMENTS.  1S8 

if  ival  ostatt^  was  to  be  subjected  to  a  judgment  lien.^ 
In  Penns\  Ivania,  a  scire  facias  may  iK)t  be  prosecuted 
against  a  suiviving  defendant  and  the  representatives 
of  a  docodant,  to  charge  tlic  personal  estate  of  the  lat- 
ter," though  where  a  judgment  is  a  lien,  it  may  by  scire 
facias  be  enforced  against  the  real  estate  of  the  sur- 
vivor upon  M'hich  such  lien  had  attached.^ 

§  86.  Parties  Plaintiff.  —  As  the  scire  facias  must 
pursue  the  judgment,  it  follows  that  all  the  plaintiffs, 
while  all  are  living,  must  join  in  the  writ.  Except  in 
the  case  of  the  death,  marriage,  or  banlvruptcy  of  the 
plaintifl',  a  scire  facias  must,  by  the  common  law,  be 
prosecuted  in  the  name  of  the  plaintiff;  *  but  by  statute 
this  right  has  sometimes  been  given  to  the  assignee,  or 
equitable  owner  of  the  judgment.^  When  a  sole  plain- 
tiff dies,  the  scire  facias  must  be  prosecuted  by  the 
person  who  represents  the  deceased.  If  the  judgment 
be  in  a  personal  action,  the  scire  facias  should  be  by 
the  executor  or  administrator;  if  in  a  real  action,  or 
an  action  for  the  possession  of  realty,  it  should  be  by 
the  heir.  "In  a  mixed  action,  it  is  said,  if  the  lands  to 
be  recovered  be  fee-simple,  the  heir  and  the  executor 
shall  join  in  the  scire  facias,  and  the  heir  have  execution 
as  to  the  lands,  and  the  executor  execution  as  to  the 
damages."^ 

^  Union  Bank?-.  Heirs  of  Powell,  3  Fla.  175;  32  Am.  Dec.  367;  Henderson 
V.  Van  Hook,  24  Tex.  .358;  Austin  v.  Reynolds,  13  Tex.  544;  Underbill  v.  Dev- 
ereaux,  2  Saund.  72;  note  to  Trethcny  v.  Ackland,  2  Saund.  G7;  Huey  v.  Red- 
den, 3  Dana,  488. 

-  Stoner  r.  Stroman,  9  Watts  &  S.  85. 

•  Commonwealth  v.  Mateer,  10  Serg.  &  R.  416. 

♦  McKinney  v.  MehaflFey,  7  Watts  &  S.  276. 

*  Murxjhy  v.  Cochran,  1  Hill,  339;  Clark  v.  Digges,  5  Gill,  118. 

•  Foster  on  Scire  Facias,  189. 


189  EXECUTION  ON  DORMANT  JXTDGMENTS.  §86 

§  87.  Parties  Defendant.  —  In  determining  who 
must  be  parties  defendant  in  a  writ  of  scire  facias,  we 
may  consider  the  question,  first,  with  reference  to  the 
original  defendants  in  the  suit;  and  second,  with  refer- 
ence to  new  persons  who  are  to  be  affected  by  the  pro- 
posed revivor.  A  scire  facias  should  conform  to  the 
judgment,  and  must  therefore  be  joint  when  the  judg- 
ment is  joint.  Where  there  is  a  judgment  against  two 
or  more  defendants,  it  may  be  revived  against  one  alone 
if  he  consents  thereto ;  for  as  he  is  the  sole  person  in- 
jured by  such  revivor,  he  is  the  sole  person  who  can 
object,  and  even  his  objection  should  be  interposed  be- 
fore the  judgment  on  the  scire  facias  is  entered  against 
him.^  In  an  early  English  case,  one  of  two  judgment 
debtors  having  died,  a  scire  facials  was  prosecuted  against 
the  survivor  alone,  correctly  describing  the  original 
judgment,  and  suggesting  the  death  of  the  other  de- 
fendant. This  scire  facias  was  sustained,  because  it  was 
said  that  the  court  could  not  know  but  that  the  plaintiff 
intended  to  take  out  a.  fieri  facias  and  levy  it  on  the  per- 
sonal estate  of  the  survivor,  which  he  could  lawfully  do; 
but,  at  the  same  time,  the  court  stated  that  the  plaintiff 
could  not  be  allowed  to  take  out  and  execute  an  elegit 
on  such  revived  judgment.^  But  at  the  present  day, 
the  rule  seems  to  almost  universally  prevail,  that  where 
there  is  a  joint  judgment  against  two  or  more,  there 
must,  unless  the  non-joinder  is  waived,  be  a  joint  scire 
facias.  The  judgment  must  be  revived  against  all  the 
defendants,  when  all  are  still  living;  and  when  one  has 
died,  his  representatives  nmst  be  made  parties  in  his 
stead.     The  plaintiff  can  neither  proceed  against  the 

1  Edwards's  Appeal,  66  Pa.  St.  89. 
'  Edaar  v.  Smart,  T.  Ptaym.  56. 


§S7  EXECUTION  ON  DORMANT  JUDGMENTS.  190 

survivors  witliout  joining-  the  representatives  of  the 
deceased,  nor  a<;ainst  the  representatives  of  the  de- 
ceased without  joining  the  survivors/  And  it  is  said 
that  a  discontinuance  as  to  aii}^  of  the  necessary  parties 
to  a  scire  facias  operates  as  a  discontinuance  as  to  all.^ 
Strangers  to  the  original  judgment  may  be  affected  by 
its  revivor  against  the  original  defendant;  and  this  may 
happen  whenever  he  sells  or  encumbers  the  lands  upon 
which  the  judgment  is  a  lien.  Whether  those  who 
have  thus  acquired  interests  under  the  defendant  must 
be  joined  with  him  in  the  scire  facias  is  a  disputed 
question,  upon  which  the  authorities  are  somewhat 
meager.  In  Maryland  it  seems  that,  although  the 
defendant  be  living,  the  judgment  cannot  be  revived 
against  him  so  as  to  affect  his  grantees  unless  they  are 

^  Foster  on  Scire  Facias,  20;  Swaiusbury  v.  Pringlc,  10  Barn.  &  C.  751? 
Gronell  v.  Sharp,  4  Whart.  344;  McAfee  v.  Patterson,  2  Smeiles  &  M.  172; 
Fowler  V.  Rickerby,  9  Dowl.  P.  C.  GS2;  Murray  v.  Baker,  5  B.  Mon.  172;  Gray 
V.  McDowell,  5  T.  B.  Mon.  501;  Holder  v.  Commonwealth,  3  A.  K.  Marsh, 
407;  Punton  t'.  Hall,  Salk.  59S;  Rex  r.  Chapman,  3  Anstr.  811;  Henderson  v. 
Vanhook,  24  Tex.  35S;  Austin  r.  Reynolds,  13  Tex.  544;  Mitchell  ?-.  Smith,  I 
Litt.  243;  Coleman  v.  Edwards,  2  Bibb,  595;  Williams  r.  Fowler,  3  T.  B.  Mon. 
310;  Boliuger  r.  Fowler,  14  Ark.  27;  Greer  v.  State  Bank,  5  Eug.  45G;  2  Sauud. 
51,  note  4,  to  case  of  Tretheny  v.  Ackland;  but  in  Alabama  plaintiif  may  dis- 
continue aa  against  either  defendant;  Hanson  v.  Jacks,  22  Ala.  519;  and  in 
Arkansas  and  Iowa  may  proceed  against  a  survivor  without  joining  the  repre- 
sentatives of  a  deceased  defendant.  Vredenberg  v.  Snyder,  G  Iowa,  39;  Finn 
V.  Crabtree,  7  Eng.  597.  But  when  a  scire  facias  recites  the  judgment  properly, 
and  calls  on  all  the  defendants  to  show  cause,  and  when  part  are  summoned 
it  appears  that  the  others  are  insolvent,  or  dead,  or  out  of  the  state,  or  have 
nothing,  it  has  been  held  that  judgment  might  be  entered  against  those  sum- 
moned; and  "  that  the  award  of  execution  is  not  necessarily  to  pursue  the  form 
of  the  ^rire  f<iruv<,  but  may  be  accommodated  to  what  shall  be  judicially  ascer- 
tained to  be  tlie  law  tit  for  enforcing  the  judgment;  and  also,  that  if  it  appear 
of  record  that  one  of  the  defendants  to  the  judgment  cannot  be  summoned  and 
need  not  be  summoned,  for  that  ho  has  not  the  ability  to  be  contributory  to 
the  payment  of  the  judgment,  the  execution  for  the  whole  may  rightfully  issue 
against  the  other."     Binford  v.  Alston,  4  Dev.  355. 

^  Morton's  Ex'rs  v.  Croghan's  Terre-tenants,  20  Johns.  lOG;  McAfee  v.  Pat- 
terson, 2  Smedes  &  M.  172. 


191  EXECUTION  ON  DORMANT  JUDGMENTS.  §87 

made  parties.^  But  in  Pennsylvania  and  in  New  York 
an  opposite  view  has  been  taken,  one  showing  that  it  is 
only  "  in  the  case  of  the  death  of  the  original  defendant 
that  the  ter-tenants  are  to  be  made  parties,  and  not 
where  the  original  defendant  is  living."^  This  view, 
we  think,  is  sustained  by  the  books  of  practice.  In 
none  of  these  works  do  we  find  an}''  reference  to  any 
case  in  which  the  successors  in  interest  of  a  living  de- 
fendant need  be  summoned  as  terre-tenants.  On  the 
contrary,  it  seems  always  to  be  assumed  that  the  only 
instances  in  which  it  can  be  necessary  to  summon  others 
than  the  original  defendants  are  where  new  persons 
have  become  interested,  either  through  the  death,  mar- 
riage, or  bankruptcy  of  the  defendant. 

Upon  the  death  of  a  defendant,  leaving  a  judgment 
which  is  not  a  lien  on  any  real  estate,  no  one  but  his 
personal  representative  need  be  a  party  to  the  scire 
facias.  But  where  the  judgment  is  for  the  possession, 
or  affects  the  title,  or  is  a  lien  on  real  estate,  the  rule 
is  different ;  and  it  becomes  necessary  to  warn  all  per- 
sons w]jose  interests  in  the  real  estate  are  liable  to  be 
prejudiced  by  a  revivor.  In  New  York  and  Missis- 
sippi, it  is  said  to  be  improper  to  join  the  heirs  with 
the  personal  representatives  of  the  deceased.^  But  in 
otlier  states  the  heirs,  personal  representatives,  and 
terre-tenants  of  the  deceased  may  all  be  joined  in  one 
scire  facias.*     In  ejectment,  where  the  judgment  is  for 

»  Doub  V.  Barnes,  4  Gill,  11,  explaining  Murphy  v.  CortI,  12  Gill  &  J.  182. 
See  alao  Lusk  v.  Davidson,  3  Pun.  &  W.  229. 

«  Young  V.  Taylor,  2  Binn.  228;  Jackson  v.  Shaffer,  11  Johns.  513;  Righter 
V.  Rittenhouse,  3  Rawle,  278. 

*  Lee  V.  McClosky,  44  How.  Pr.  GO;  Barnes  v.  McLemore,  12  Smedes  & 
M.  31(5. 

*  Calloway  v.  Eubank,  4  J.  J.  Marsh.  286;  Reynolds  v.  Henderson,  2  Gilm. 
110;  Ptowlaud  V.  llarbaugh,  5  Watts,  365;  Graves  t'.  Skeels,  0  liul.  107. 


§87  EXECUTION  ON  DORMANT  JUDGMENTS.  192 

the  possession  of  lands  and  for  damages,  both  the  heirs 
and  representatives  of  the  deceased  are  necessary  parties 
to  its  revivor;^  but  ^Yhere  the  jud^'nient  is  for  posses- 
sion alone,  the  personal  representatives  need  not  be 
warned,  if  under  the  law  prevailing  in  the  jurisdiction 
where  the  lands  lie,  such  representatives  are  not  en- 
titled to  be  in  possession  thereof,"  If  the  judgment  be 
for  money,  it  is  primarily  chargeable  against  the  execu- 
tor, and  no  revivor  ought  to  be  entered  against  the 
heirs  until  after  a  return  of  vihil  as  to  the  executor.* 
Persons  entering  an  tenants  of  the  defendant  in  eject- 
ment after  the  entry  of  the  judgment  are  said  to  be 
unnecessary  parties  to  a  scire  facias,  because  their  hold- 
ing is  in  subordination  to  the  defendant,  and  they  may 
properly  be  dispossessed  under  a  habere  facias  against 
him.*  In  Alabama,  if  there  are  two  executors  of  tlie 
deceased  defendant,  one  of  whom  is  beyond  the  juris- 
diction of  the  court,  he  may  be  omitted  from  the  scire 
facias.^  Where  a  defendant  is  imprisoned  for  life  upon 
a  conviction  for  felony,  and  is  by  the  law  civilly  dead, 
he  cannot  be  a  party  to  a  scire  facias.  It  ought  to  be 
directed  to  his  heirs  or  representatives;  and  if  directed 
to  and  served  upon  him  personally,  is  entirely  inopera- 
tive.® None  but  those  who  are  made  parties  to  the 
scire  facias  are  affected  by  the  judgment  of  revivor/ 
One  about  to  prosecute  a  scire  facias  to  revive  a  judg- 

1  Mitchell  V.  Smith,  1  Litt.  243. 

2  Thomijson  v.  Dougherty,  .3  J.  J.  INIarsh.  5G4;  Waklon  v.  Craig,  14  Pet.  147. 
'  Pantou  V.  Hall,  C'arth.  107;  Alston  v.  Munford,  1  Brock.  206;  Brown  v. 

Webb,  1  Watts,  411;  Bingham  on  Judgmeuta  and  Executions,  131;  Roland  u. 
Harbaugh,  5  Watts,  365. 

*  Lunsford  v.  Turner,  5  J.  J.  Mar.sh.  104;  Von  Puhl  v.  Rucker,  6  Iowa,  187. 

^  Hanson  v.  Jacks,  22  Ala.  549. 

<>  Troup  V.  Wood,  4  Johns.  Ch.  228. 

'  Campbell  V.  Raw  don,  19  Barb.  494. 


193  EXECUTION  ON  DORMANT  JUDGMENTS.  §88 

merit  lien  ao-ainst  the  successors  in  interest  of  a 
deceased  defendant,  in  determining  who  are  to  be 
made  parties,  must  be  governed  by  the  same  principles 
which  would  be  applicable  to  the  foreclosure  of  a  mort- 
gage or  other  lien.  He  must  bring  in  all  persons 
holding  title  under  the  defendant,  but  subordinate  to 
the  lien;  but  he  need  not  and  cannot  proceed  against 
persons  whose  claims  are  adverse  to  the  defendant's 
title,  or  paramount  to  the  lien/  "It  is  the  usual  way 
to  join  the  heir  and  terre-tenants  in  the  writ  of  scire 
facias;  but  it  is  said  that  if  it  be  returned  that  the  heir 
has  no  lands,  the  writ  may  proceed  against  the  tenants 
of  the  lands  without  him,  and  it  mav  be  ag;'ainst  the 
tenants  of  the  lands  generally,  without  naming  them, 
or  against  them  by  name,  but  the  former  is  the  usual 
form;  for  if  the  plaintiff  undertakes  to  name  them,  he 
must  name  them  all,  and  if  he  do  not,  those  who  are 
named  may  plead  in  abatement.  It  seems,  however, 
to  be  the  better  opinion  that  the  terre-tenants  alone 
are  not  to  be  charged  until  the  heir  be  summoned,  or 
it  be  returned  that  there  is  no  heir,  or  that  the  heir 
hath  not  any  lands  to  be  charged.^ 

§  88.  Form  of  the  Writ. — The  writ  of  scire  facias^ 
answered  the  double  purpose  of  a  writ  and  of  a  decla- 
ration.^ Its  form,  therefore,  necessarily  varied  to  cor- 
respond to  the  various  contingencies  in  which  it  might 
issue.     It  was  directed  to  the  sheriff,  and  recited:   1. 

1  Morton  v.  Croghan,  20  Johns.  lOG;  Lusk  v.  Davi.lson,  3  Pen.  &  W.  229; 
Polk  V.  Pen-lleton,  .31  Md.  118;  Janett  v.  Tomlinson,  3  Watts  &  S.  114. 

*  Foster  on  Scire  Facias,  1!)0. 

•  Foster  on  Scire  Facias,  .349;  Blake  v.  Dodcmead,  2  Strange,  775;  Hank  of 
Scotland  V.  Fenwick,  1  Ex.  790;  Niinn  r.  Claxton,  3  Ex.  715;  State  v.  RoMn- 
son,  8  Yerg.  370;  Farris  v.  People,  58  111.  20;  Callioun  v.  Adams,  43  Ark.  2.38; 
Lasselle  v.  fiodfrey,  1  Blackf.  298;  McNeigh  v.  Old  Doni.  Bank,  70  Va.  207. 

Vol.  I.  — 13 


§S8  EXECUTION  ON  DORMANT  JUDGMENTS.  194 

Tho  rrcovi'iy  of  a  jiul^'nu^nt,  slu)\ving  the  (xmrt,  amount, 
aii'l  pai'tivs;  2.  Tho  cliange,  it"  any,  in  the  parties  to 
tho  jiklgnient,  stating  wliat  new  parties  had  become 
interested;  3.  That,  notwithstanding  tlie  judgnient, 
execution  still  nunains  to  be  done;  4.  That  plaintiff 
cKnuunIs  that  he  be  jn'ovided  witli  a  proper  remedy; 
5.  It  connnanded  the  officer  to  make  known  to  the 
defendant,  or  other  person  designated  in  tho  writ,  that 
lie  should  bo  before  the  court,  at  a  date  specified,  to 
show  cause  why  plaintiff  ought  not  to  have  execution 
of  the  judgment.  No  petition  or  complaint  is  neces- 
saiy  to  obtain  a  scire  facias;  or  perhaps  it  would  be 
more  correct  to  say  that  the  scire  facias  is  a  complaint 
as  well  as  a  writ.  It  is  therefore  essential  that  it  state 
all  the  facts  necessary  to  authorize  the  relief  sought,^ 
and  if  it  fails  to  do  this,  it  may  be  demurred  to,^  or  in 
some  states  ma}-  be  quashed  upon  motion.^  The  fail- 
ure to  demur  or  to  move  to  quash  only  admits  the  facts 
stated,  and  if  they  are  not  such  as  will  warrant  the 
judgment  given,  it  may  be  reversed  on  appeal  or  by  writ 
of  error,  as  may  other  judgments  by  default  based  upon 
complaints  which  are  radically  defective.*  With  re- 
spect to  designating  heirs  and  terre-tenants,  it  has  been 
said  that  they  ought  to  be  named  in  the  writ,^  or  at 
least  that  it  is  preferable  that  they  be  so  named.  But 
there  seems  to  be  no  doubt  that  this  is  unnecessary.® 
Instead  of  specifically  naming  the  heirs  and  terre-ten- 

»  Huey  V.  RecMen,  3  Dana,  488;  McVickar  v.  Ludlow,  2  Ohio,  246;  Hicks 
V.  Stote,  3  Ark.  313. 

■■'  Prather  v.  Manro,  11  Gill,  201;  Graham  v.  Smith,  1  Blackf.  413. 

»  Evans  V.  FruelanJ,  3  Munf.  119. 

*  Waller  v.  HufiF,  9  Tex.  530;  Wray  v.  Williams,  2  Yerg.  301. 

'  Chahoon  v.  HoUeiibacli,  IG  Serg.  &  R.  425;  IG  Am.  Dec.  587. 

•Seawell  v.  Williams,  5  Ilayw.  (N.  C.)  280;  Williama  v.  Fowler,  3  T.  B. 
Mon.  31G;  Hughes  v.  Wilkinson,  23  Miss.  GOO. 


195  EXECUTION  ON  DORMANT  JUDGMENTS.  §88 

ants,  the  writ  may  and  generally  does  command  the 
sheriff  as  follows:  "That  by  honest  and  lawful  men  of 
your  bailiwick,  you  make  known  to  the  heirs  of  the 
said  C  D,  and  also  to  the  tenants  of  all  the  lands  and 
tenements  in  your  bailiwick,  of  which  said  C  D,  or  any 

person  in  trust  for  him,  was  or  were  seised  on  the 

day  of ,  on  which  day  the  judgment  aforesaid  was 

given,  or  at  any  time  after.^  The  judgment  must  be 
stated  in  the  writ  with  as  much  particularity  as  would 
be  required  in  a  complaint,  though  we  apprehend  that 
neither  in  a  complaint  nor  in  a  scire  facias  would  an 
immaterial  variance  be  fatal,  if  from  what  is  set  forth 
it  is  clearly  apparent  what  judgment  is  sought  to  be 
revived  by  the  proceeding.^  If  the  judgment  stated  is 
such  that  some  further  action  was  necessary  after  its 
entry  to  make  it  final  and  effective,  such  additional  ac- 
tion should  be  shown  by  the  writ.^  If  the  judgment 
on  which  execution  is  sought  is  in  ejectment,  the  writ 
must  state  the  term  recovered  by  such  judgment,  for 
otherwise  it  cannot  be  known  that  such  term  has  not 
expired,  and  with  it  the  plaintiff's  right  to  execution.* 
If  any  facts  are  disclosed  by  the  writ  from  which  the 
satisfaction  of  the  judgment  is  inferable,  then  such  prob- 
able satisfaction  must  be  negatived.  Thus  if  it  appears 
that  a  ca.  sa.  has  been  issued,  and  the  defendant  arrested 
thereon,  such  facts  must  be  disclosed  as  would  estab- 
lish plaintiff's  right  to  execution,  notwithstanding  such 
taking  of  the  person  of  the  defendant  in  execution.^    So 

'  For  forms  of  writs  of  scire  facias,  see  Tidd's  Forma,  305-335;  Foster  on 
Scire  Facias,  379-388;  Tillingliast's  Forms,  39-58. 

*  Wolf  V.   Pounsford,  4  Ohio,  397;  Ward  v,  Prather,    1  J.  J.  Marsh.  4; 
Barron  v.  Tait,  19  Ala.  78. 

*  Evans  v.  Freelaud,  3  Munf.  119. 

*  Griffith  V.  Wilson,  1  J.  J.  Marsh.  209. 

*  Dozicr  V.  Gore,  I  Litt.  1G3. 


§8S  EXECUTION  OX  DORMANT  JUDGMENTS.  lOG 

if  property  lias  been  levied  ui>(Mi  and  sold,  hut  lias  been 
lost  to  the  plaintifl'  by  reason  of  some  paramount  title 
or  lien,  that  faet  should  be  stated/ 

It  ought  to  ap}H'ar  from  the  writ  that  it  is  necessary 
to  entitle  the  plaintiif  to  execution.  If  he  is  not 
entitled  to  exeeution  because  the  jud<^mcnt  lias  become 
dormant  from  lapse  of  time,  that  fact  ought  to  be  sug- 
gested. Hence  a  scire  facias  is  defective  if  it  fails  to 
state  the  date  of  the  judgment,  because,  in  the  absence 
of  such  statement,  it  does  not  appear  but  that  plaintiff 
may  have  execution  without  proceeding  by  scire  facias.^ 
It  is  not,  however,  essential  or  usual  to  state  that  no 
execution  issued  within  a  year  and  a  day.  This  fact, 
as  well  as  the  fact  that  the  judgment  remains  in  force, 
seems  to  be  suiliciently  suggested  by  the  averment, 
"  that  although  judgment  aforesaid,  in  form  aforesaid, 
is  given,  execution  nevertheless,  for  the  debt  and  dam- 
ages aforesaid,  remains  to  be  made  to  him,"  the  plaintiif."' 
Where  an  executor  or  administrator  is  souc^ht  to  bo 
brought  before  the  court  by  scire  facias,  it  must  show 
the  facts  making  him  answerable  to  the  writ,  and  hence 
it  must  suggest  the  death  of  the  judgment  defendant, 
and  the  appointment  of  such  executor  or  administrator,* 
Where  still  other  facts  are  required  to  establish  the 
plaintiff's  right  to  execution,  they  nmst  be  stated. 
Therefore,  a  scire  facias  against  the  administrator  of  one 
of  several  co-defendants  is  demurrable,  unless  it  shows 
cause  for  proceeding  against  such  administrator  in  the 
absence  of  the  other  defendants.'^     If  the  object  of  the 

'  Baxter  v.  Shaw,  28  Vt.  5G9. 

»  Hough  V.  Norton,  9  Ohio,  45. 

»  Albin  V.  People,  4G  111.  .372;  Weaver  v.  Reese,  0  Ohio,  418. 

*  Walker  r.  Hood,  5  Black f.  2(iG. 

*  Graham  v.  Smith,  1  JSlackf.  414. 


197  EXECUTION  ON  DORMANT  JUDGMENTS.  §  SS 

proceeding  is  to  make  an  administrator  answerable  per- 
sonally, the  scire  facias  must  aver  that  he  has  converted 
or  wasted  the  goods  of  his  intestate  which  came  to  his 
hands  "to  be  administered  upon,  to  the  value  of  said 
debt  and  costs,  with  intent  that  the  execution  aforesaid 
should  not  be  made,"  and  must  notify  him  to  appear  to 
show  cause  why  plaintiff  should  not  have  ''execution 
against  him  of  the  debt,  etc.,  to  be  levied  out  of  his  own 
proper  goods,  chattels,  lands,  and  tenements."^  When 
heirs  are  proceeded  against  to  subject  to  execution 
lands  descended  to  them,  it  appears  to  be  unnecessary 
to  describe  such  lands  in  the  scire  facias,"  though  the 
practice  of  so  describing  them  has  been  commended  as 
the  better  one.^  Regarded  as  a  pleading,  the  writ  of 
scire  facias  as  sanctioned  by  the  approved  precedents 
is  essentially  defective,  in  not  designating  the  heirs  or 
terre-tenants  who  are  in  effect  made  parties  defendant, 
and  in  not  describinof  the  lands  ao-ainst  which  the  exe- 
cution,  when  issued,  will  operate.  This  defect  is  gen- 
erally supplied  by  the  return  to  the  writ.  From  the 
writ  and  return  together,  it  must  always  appear  who 
were  proceeded  against  as  heirs  and  terre-tenants,  and 
with  respect  to  what  lands  they  were  summoned  to 
appear.  The  writ  need  not  negative  the  various  mat- 
ters which,  if  existing,  would  constitute  a  defense,  be- 
cause it  is  the  business  of  the  defendant  to  plead  these 
if  he  wishes  to  make  them  available.*     A  scire  facias 

'  Wray  v.  Williams,  2  Yerg.  301 .  For  scire  fcwias  to  enforce  payment  of 
8um  awartleil  as  owelty  in  partition,  see  Davis  v.  Norris,  8  Pa.  St.  122. 

■^  Commercial  Banic  v.  Kendall,  1.3  Smcdcs  &  M.  278;  Union  Bank  v.  Meigs, 
5  Ham.  .312.  But  in  Tennessee,  before  a  «aVe  facias  can  issue  against  heirs,  it 
must  be  suggc.iteil  to  the  court  that  certain  real  estate  has  descended  to  them, 
etc.     Hillmaii  r.  Hickorson,  .3  Head,  57.3;  Friersou  v.  Harris,  5  Cold.  14G. 

'  Union  Bank  r.  Meigs,  .'>  Ohio,  .312. 

*  Rogers  V.  Denhaui,  2  Gratt.  200. 


gSO  EXECUTION  ON  DORMANT  JUDGMENTS.  198 

seems  io  be  subject  to  amendment  to  the  same  extent 

as  an  original  i>xeeution.^ 

§  89.  Serving  the  Writ. — "Although  the  intent  of 
the  sciiY  facias  is  to  give  the  jiarty  against  whom  exe- 
cution is  about  to  issue  notice  or  warning  thereof,  yet 
bv  the  ijeneral  iiraetice  it  is  wholly  defeated,  for  the 
defendant  may  be  sunnnoned  or  not  as  tlie  ]xirty  thinks 
fit;  and  indeed,  the  usual  way  is  to  revive  the  judgment 
without  giving  the  party  any  notice." "  "  On  the  return 
day  of  the  writ  the  sheriff  either  returns  'scire  feci,'  that 
is,  that  he  has  warned  the  party,  or  'nihil,'  that  is,  that 
the  party  has  nothing  by  which  he  can  warn  him. 
Where  the  sheriff  returns  'vihil,'  the  party  must  sue 
out  a  second  or  alias  writ  of  scire  facias,  and  if  the  sheriff 
returns  nihil  also  to  the  second  writ,  and  the  party  do 
not  appear,  there  shall  be  judgment  against  hini."^  In 
other  words,  two  returns  7iihil  are  equivalent  to  one 
return  of  scire  fcci,^  with  this  exception,  that  when  a 

^  Thompson  v.  Dougherty,  .3  J.  J.  Marsh.  564;  Arrison  v.  Commonwealth, 

1  Watts,  .374;  Rainey  v.  Commonwealth,  10  Watts,  343;  Holland  v.  Phillips, 

2  Porry  &  D.  336;  10  Ad.  &  E.  149;  Foster  on  Scire  Facias,  375;  Buxom  v. 
Hoskins,  6  Mod.  264;  Rex  v.  Ayre,  1  Strange,  43;  Rex  v.  Aires,  10  Mod.  259, 
note;  Thorpe  v.  Hook,  1  Dowl.  P.  C.  501;  Klos  v.  Do.ld,  4  Dowl.  P.  C.  67; 
Baker  r.  Neaver,  1  Cromp.  &  M.  112;  3  Tyrw.  233;  Webb  v.  Taylor,  1  Dowl. 
&  L.  076;  Anthony  r.  Huinphries,  4  Eng.  176;  Bryant  r.   Smith,  7  Cold.  113. 

^  2  Sellon'd  Practice,  197;  Bingham  on  .Judgments  and  Executions,  126. 

'  Bingham  on  Judgments  and  Executions,  124. 

*  Cox  t>.  McFerron,  Breese,  10;  Kearna  v.  State,  5  Blackf.  334;  Barrow  v. 
Bailey,  5  Fla.  9;  Barratt  v.  Cleydon,  Dyer,  108;  Rateliffo's  Case,  Dyer,  172; 
Cumming  v.  Eden,  1  Cow.  70;  2  Wm.  Saund.  72  s,  note  to  Underhill  i:  Dev- 
ereaux;  Clianibers  r.  Carson,  2  Whart.  9;  Warden  v.  Tainter,  4  Watts,  274; 
Compher  v.  Anawalt,  2  Watts,  490;  Bromley  v.  Littleton,  Yelv.  113;  Barcock 
V.  Tliompsou,  Styles,  281,  288;  Sans  v.  People,  3flilm.  327;  Andrews  v.  Harper, 
8  Mod.  227;  Ran.lal  r.  Wale,  Cro.  Jac.  59;  Besimer  v.  People,  15  III.  440;  Dun- 
levy  V.  P«.o3s,  Wright,  287;  Woodford  v.  Bromfield,  1  Murph.  187;  Choat  v. 
People,  19  111.  03;  Kearns  v.  State,  3  Blackf.  3.'14;  Cox  7-.  McFerron,  Breese, 
10.  But  under  more  recent  rules  and  decisions,  a  judginent  will  not  he  en- 
tered on  two  iiihiU  unless  efforts  have  been  made  to  summon  the  defendants. 
Sabine  r.  Field,  I  Cromp.  &.  M.  400;  Foster  on  Scire  Facias,  355. 


199  EXECUTION  ON  DORMANT  JUDGMENTS.  §89 

judgment  is  revived  without  any  actual  notice,  the  de- 
fendants may,  either  on  motion  or  by  aihdita  querela,  be 
relieved  if  the  revivor  was  improper/  While  this  con- 
structive service  is  permitted,  yet  with  respect  to  what 
it  does  require  the  law  seems  to  be  quite  exacting.  If 
the  writ  is  served  b}^  a  sheriff  to  whom  it  was  not  di- 
rected,^ or  the  service  is  by  giving  a  copy  to  a  member 
of  the  defendant's  family,  the  service  is  a  nullit}-.^  So 
if  there  are  two  or  more  persons  to  be  proceeded  against, 
the  service  of  the  writ  upon  one  of  them  will  not  jus- 
tify an}'  judgment  against  the  others.^  But  the  con- 
structive service  of  scire  facias  by  two  returns  of  nihil, 
or  not  found,  operates  against  those  defendants  only 
wliose  names  are  stated  in  the  writ.  To  a  scire  facias 
against  the  heirs  and  terre-tenants,  "the  sheriif  returns 
either  that  there  are  none,  or  that  he  has  warned  them 
to  appear;  in  the  latter  case,  if  the  writ  be  general 
against  the  terre-tenants,  without  naming  them,  tlie  sher- 
iff should  return  that  he  has  warned  certain  persons, 
describing  them,  being  tenants  of  all  the  lands  in  his 
bailiwick,  or  certain  persons  tenants  of  certain  lands, 
and  that  there  are  no  others.""^  The  methods  of  warn- 
ing tlie  defendants  in  scire  facias  have  been  modified  by 
statutes  in  many  of  the  states  where  the  writ  is  still 
employed.^     Unless  the  service  of  the  writ  is  made  in 

*  Anonymous,  Snlk.  93;  Ludlow  v.  Lcnnard,  2  Ld.  Rayin.  1'295;  Wharton 
V.  Richardson,  2  Strange,  1075;  Randal  v.  Walo,  Cro.  Jac.  59;  Wicket  v.  Crcmer, 
1  Lil.  Raym.  439;  S.ilk.  2G4;  12  Mo.l.  240;  Holt  v.  Frank,  1  Maule  &  S.  199; 
Foster  on  Scire  Facias,  .S.IT;  Barrf)W  v.  Bailey,  5  Fla.  9. 

•■'  Kenne  ly  «•.  Toople,  15  111.  418. 
»  McCoinhs  V.  Fectcr,  1  Wend.  19. 

*  Brcckenridgc  r.  Miller,  1  How.  (Miss.)  273. 

'  2  Wni.  Saund.  72  r;  Cumming  v.  Ed?n,  1  Cow.  70. 

*  Calloway  r.  Eubank,  4  J.  .J.  Marsh.  280;  Combs  v.  Young,  4  Y.  -g.  218-  fG 
Am.  Dec.  225;  Crutclificld  v.  Stewart,  10  Ycrg.  237;  Rice  v.  TalmaUgo,  i;0  Vt. 
3~>i;  CouiMtock  r.  iiolbrook,  IGGray,  111. 


goo  EXECUTION  ON  DORMANT  JUDGMENTS.  200 

some  of  the  inethods  authorized  by  law,  the  jud.i^meiit  of 
ivvivcn'  is  ino]H"rativo/ 

§  90.    Proceeding's  on  Return  of  the  Writ  — De- 
fenses Wliicli  may  be  Made-  —  If  the  party  suminoiied 
makes  no  a[>pc^arance,  jiKl'^mcnt  will  be  entered  a<j^ainst 
liim.     "  So  where  a  scire  facias  is  sued  out  on  a  joint  judg;- 
ment  ag-ainst  two,  if  it  be  returned  that  one  was  sum- 
moned, and  lie  makes  default,  and  that  tlie  other  has 
nothing,  the  plaintiff  may  have  execution  for  the  whole 
ao-ainst  him  who   was  summoned  and  made   default. 
So  if  it  be  returned  that  one  of  them  is  dead,  and  the 
other  was  summoned,  and  he  malvcs  default."  '^     If  the 
defendai]t  appears,  the  plaintiff  may  declare  against 
liim.     The   so-called   declaration  is,   however,  nothing 
more  than  a  recital  setting  forth  a  copy  of  the  writ, 
and   praying  for  execution  thereon.^     The  defendant 
mav  plead  either  in  bar  or  in  abatement.*     "Thus  to 
a  scire  facias  on  a  judgment,  the  defendant  may  plead 
'lad  tiel  record,  or  payment,  or  a  release,  or  that  the  debt 
and  damages  were  levied  fieri  facias,  or  that  his  lands 
were  extended  for  them  upon  an  elegit,  or  his  person 
taken  in  execution  on  a  capias  ad  satisfaciendum.     So 
a  terre-tenant  may  plead  in  bar  to  a  scire  facias  any- 
thin"-  which  shows  his  lands  not  liable  to  execution, 
or  non-joinder  of  other   terre-tenants.     A  defendant 
may  plead  to  a  scire  facias  anything  which  has  been 
done  under  the  original  judgment  which   exonerates 
him  from  liability."^     "With  respect  to  the  judgment 

»  Simmona  v.  Wood,  6  Yerg.  518;  People  v.  The  Judges,  1  Wend.  19. 

■''  Biugliaiii  oil  Judgments  and  Executions,  125. 

=>  Soe  Tidil'a  Fonn'i,  adapted  to  state  of  New  York,  342;  Poiplo  v.  Society 
for  Propagating  tlic  Gospel,  1  Paine,  G52. 

*  Alice  r.  Gale,  10  Mod.  112;  Rex  v.  Hare,  1  Strange,  146. 

'-  Foster  on  Scire  Facias,  '.^o.V,  Phillipson  v.  Teinpust,  1  Dowl.  &  L.  209; 
Gilea  V.  Ilutt,  5  Dowl.  &  L.  387;  1  E:i.  704;  Muuuteuey  v.  Andrews,  Cliff. 


201  EXECUTION  ON  DORMANT  JUDGMENTS.  §90 

itself,  manifest^  the  same  defenses  are  admissible  as 
in  an  action  upon  a  judgment,  and  none  other.  If  the 
judgment  was  by  confession,  it  may  be  sliown  to  have 
been  entered  by  a  clerk  who  w^as  not  authorized  to 
receive  or  enter  it.^  Any  circumstances  may  be  proved 
which  tend  to  show  that  the  judgment  is  void,-  as  that 
the  court  never  obtained  jurisdiction  of  the  person  of 
the  defendant.^  But  error  or  irregularity  in  the  pro- 
ceedings anterior  to  the  judgment  cannot  be  urged  by 
the  defendants  on  scire  facias.'^ 

"The  principles  of  estoppel,  attached  to  final  adjudi- 
cations, are  as  operative  and  conclusive  in  proceedings 
in  scire  facias  as  in  any  other  cases.  No  defense  can 
be  made  which  existed  anterior  to  the  judgment,"  ^  nor 

G75;  4  Leon.  194;  Glascock  v.  Morgan,  1  Lev.  92;  Scott  v.  Peacock,  1  Salk. 
271;  Holmes  o.  Newlands,  h  Ball  &  B.  370;  Jefferson  v.  Morton,  2  Wins.  Sauud. 
6;  Clerk  v.  Withers,  Ld.  Raym.  1075.  The  pendency  of  a  writ  of  error  is  said 
not  to  bar  a  scire  facias  to  make  an  executor  a  party  to  the  judgment.  Snook 
V.  Mattock,  G  Nev.  &  M.  783;  5  Ad.  &  E.  239;  2  Har.  &  W.  188. 

1  Phelpj  V.  Hawkins,  6  Mo.  197. 

2  Ulrich  V.  Voneida,  1  Pa.  245;  Griswold  v.  Stewart,  4  Cow.  457. 

3  Clinton  Bank  v.  Hart,  19  Ohio  St.  372. 

*  Anthony  v.  Humphries,  9  Ark.  17G;  Barber  v.  Chandler,  17  Pa.  St.  48; 
55  Am.  Dec.  503;  Laugston  v.  Abbey,  43  Miss.  1G4;  McAfee  v.  Patterson,  2 
Smedcs  &  M.  505;  Bctancourt  v.  Eberlin,  71  Ala.  461. 

*  Freeman  o;i  Judg.neats,  sec.  445;  Boweu  v.  Bonner,  45  Miss.  10;  Allen  v. 
Andrewci,  Cro.  EKz.  283;  Cook  v.  Jones,  Cowp.  727;  Proctor  v.  Johnson,  2 
Salk.  COO;  Camp  v.  Baker,  40  Ga.  148;  Koont».  Ivey,  8  Rich.  37;  McFarlaud  v. 
Irwin,  8  Johns.  77;  Davidson  v.  Thornton,  7  Pa.  St.  128;  Alden  v.  Bogart, 
2  Grant  Cas.  400;  West  v.  Sutton,  1  Salk.  2;  Ld.  Raym.  853;  Bradford  v. 
Bradford,  5  Conn.  127;  Heller  v.  Jones,  4  Binu.  Gl;  Sigourney  v.  Stockwcll,  4 
Met.  518;  Uaite<l  States  v.  Thompson,  Gilp.  G14;  Hubbard  v.  Manning, 
Kirby,  25G;  Cardesa  v.  Humes,  5  Serg.  &  R.  G5;  Watking  v.  State,  7  Miss. 
334;  Dickson  v.  Wilkinson,  3  How.  57;  Miller  v.  Shackelford,  IG  Ala.  95; 
I.Iathew.^  V.  Mosl^y,  13  Smcdes  &  M.  422;  Person  r.  Valentine,  13  Smedes  <fe 
M.  551;  Duncan  v.  Ilargovc,  22  Ala.  150;  Smiths.  Eaton,  36  Me.  298;  .58  Am. 
Dec.  74G;  Ferebce  v.  Doxey,  G  Ired.  4^8;  Tliomas  ?-.  Williams,  3  Dowl.  P.  C. 
655;  Baylis  v.  Hay  ward,  5  Nev.  &  M.  G13;  4  Ad.  &  E.  25G.  One  who  fails  to 
plead  hi.s  infancy  in  tlic  original  action  cannot  plead  it  against  the  scire  facias 
Kemp  V.  Cook,  G  Md.  305.  Tiic  same  rule  applies  to  a  defendant  who  ne- 
glected to  plead  hia  diachargo  in  insolvency.     Moore  v.  Garretsou,  6  Md.  444. 


§90  EXECUTION  ON  DORMANT  JUDGMENTS.  202 

Nvhich  is  so  inconsistent  witli  tlie  judginent  that  the 
maintenance  of  the  defense  iniphos  or  ostal)lishes  the 
falsity  of  the  facts  upon  which  the  judgment  rests.^ 
The  |)iinei[)le of  res  judicata  is,  however,  on  i<circ  facias, 
as  in  otlier  cases,  confined  to  the  parties  to  the  suit, 
and  thoir  privies  in  person  or  in  estate.^  Of  course 
the  delendants  may  show  that  the  judgment  has  been 
Sixtisfied,  or  that  from  some  cause  occurring  since  the 
renihtion  of  the  judgment  the  plaintilf  is  no  longer 
entitled  to  execution.^  A  terre-tenant  cannot  success- 
fully defend  a  scire  facais  on  the  ground  that  he  pur- 
chased the  lands  sought  to  be  charged  without  having 
any  actual  notice  of  the  judgment/  There  are  cases 
which  declare,  in  general  terms,  that  terre-tenants 
and  other  strangers  to  the  judgment  may  falsify  it  for 
fraud  or  irregularity  in  its  renditiou.^  But  we  appre- 
hend that  the  doctrine  of  these  decisions  must  be  con- 
fined to  such  strangers  as  were  prejudiced  b}^  the 
judgment  when  it  was  entered.  For  if  the  defendant 
was  properly  before  the  court  so  as  to  give  it  jurisdic- 
tion, he  could  not  attack  the  judgment  collaterally  for 
fraud  and  irregularity,  and  certainly  he  could  not,  after 
judgment,  transmit  to  others  a  right  which  he  did  not 
possess,  or  which  he  had  forfeited  through  his  own 
want  of  diligence.^     But  where  the  original  judgment 

»  Smith  V.  Eaton,  36  Me.  298;  58  Am.  Dec.  74G;  Pollard  v.  Eckford,  50 
Miss.  C.31;  Dowliug  v.  McGregor,  91  Pa.  St.  410;  May  v.  State  Bank,  2  Rob. 
(Va.)  50;  40  Am.  Dec.  726;  Koon  v.  Ivcy,  8  Rich.  37. 

'■•  Griswold  i:  Stewart,  4  Cow.  459.  In  Massachusetts,  a  judgment  by 
default  against  a  person  summoned  as  a  trustee  is  not  final,  and  he  may,  on 
acirtr  /acuis,  show  that  he  was  not,  in  fact,  chargeable.  Brown  v.  Neale,  3 
Allen,  74;  80  Am.  Dec.  53. 

»  Brown  r.  Morangue,  108  Pa.  St.  69;  Seymour  v.  Hubert,  83  Pa.  St.  34G. 

*  Ridge  V.  Prather,  1  Blackf.  401. 

*  Proctor  r.  John.son,  1  Ld.  Raym.  009;  2  Salk.  COO;  Ulrich  v.  Voneida.  1 
Penr.  &  W.  250;  Gridwold  r.  Stewart,  4  Cow.  458 

*  Heller  v.  Joues,  4  Binn.  01. 


203  EXECUTION  ON  D0R>L.4NT  JUDGMENTS.  §91 

was  procured  or  suffered  with  the  view  of  prejudicino- 
third  persons,  they  may  be  allowed  to  avoid  it  on  scire 
facias;^  for  "whenever  a  jud^-ment  or  decree  is  pro- 
cured through  the  fraud  of  either  of  the  parties,  or  by 
the  collusion  of  both,  for  the  purpose  of  defrauding 
some  third  person,  he  may  escape  from  the  injury  thus 
attempted,  by  showing,  even  in  a  collateral  proceeding, 
the  fraud  or  collusion  by  which  the  judgment  was 
obtained."" 

§  91.     Time  in  Which  the  Writ  mnst  be  Sued  out. 

—  In  England,  a  scire  facias  cannot  be  sued  out  to  re- 
vive a  judgment,  except  within  twenty  years,  unless  in 
the  mean  time  some  payment  thereon  has  been  made,  or 
some  written  acknowledgment  of  the  continuing  force 
of  the  judgment  has  been  given,  in  which  cases  the 
scire  facias  must  be  sued  out  within  twenty  years  after 
the  last  payment  or  acknowledgment.^  If  the  judg- 
ment be  less  than  seven  years  old,  the  writ  issues  of 
course ;  but  after  that  period,  and  before  the  judgment 
is  ten  years  old,  "  a  side  bar  or  treasury  rule  must  be 
obtained.  If  the  judgment  be  between  ten  and  fifteen 
years  of  age,  a  scire  facias  is  not  allowed  without  a 
motion  in  term,  or  a  judge's  order  in  vacation.  If  be- 
tween fifteen  and  twenty  years  old,  there  must  first  be 
a  rule  to  show  cause."  In  the  United  States,  the 
statutes  of  limitation  applicable  to  proceedings  on  scire 
facias  prescribe  different  terms  in  the  different  states.* 

'  Phillipson  V.  Earl  of  Egremont,  6  Q.  B.  587;  14  L.  J.  Q.  B.  25;  Bosanquet 
V.  Graham,  G  Q.  B.  COl,  note;  Doilgsou  v.  Scott,  2  Ex.  457;  G  Dowl.  &  L.  27; 
17  L.  .J.  Ex.  .321. 

*  Freeman  on  .Judgments,  sec.  3.3G. 
'  Foster  on  Scin;  Facia.s,  14,  29. 

♦  Mullikeii  r.  Diivall,  7  Gill  &  J.  355;  Clark  v.  Soxton,  23  Wend.  477;  Lang- 
ham  V.  Grig.sby.  !)  T.x.  4')3;  Fur.st  v.  Ovcrduer,  3  Watts  &  S.  470;  Grecn'.s  Ap- 
peal, G  Watt.t  &  S.  .327;  Co.lc  of  Ala.,  sec.  2833;  Lanaing  v.  Lyons,  9  Jolms.  84; 
Bank  of  New  York  v.  Eden,  17  Johns.  105. 


§§02,  IV.' a        EXECUTION  ON  DORMANT  JUDGMENTS.  204 

§  93.  An  Irregular  or  Erroneous  Scire  Facias,  like 
an  irregular  or  cironeous  execution,  is  voitlaMc  but  not 
void.  If  the  irregularit}'^  is  not  taken  advantage  of  in 
some  ap[>i'opriatc  method,  the  judgment  of  revivor  is 
valid.  It  cannot  be  collaterally  assailed,  and  will  sup- 
port title  derived  from  an  execution  issued  by  its  au- 
thority.^ 

§  93  a.  The  Judgment  Rendered  upon  Scire  Facias 
must  be  consonant  with  the  relief  sought.  This  relief 
is  nothing  more  than  that  plaintiff  be  allowed  the  means 
nccessar\'  to  make  a  pre-existing  judgment  effectual  and 
productive.  No  new  recovery  can  be  had,  and  if  a 
judgment  is  entered  up  in  the  nature  of  an  original 
judgment,  or  to  the  effect  that  plaintiff  recover  a  cer- 
tain sum  of  money  or  a  designated  parcel  of  real  or 
personal  property,  it  is  void.'^  The  "  entry  should  be 
that  the  plaintiff  have  execution  for  the  judgment  men- 
tioned in  the  scire  facias,  and  for  costs."  ^  The  effect 
of  a  proceeding  by  scire  facias  in  Pennsylvania  has  been 
thus  described  by  the  supreme  court  of  that  state :  "A 
scire  facias  to  revive  a  judgment  post  annum  et  diem  is 
but  a  continuation  of  the  original  action,  and  the  exe- 
cution thereon  is  an  execution  in  the  former  judgment. 
The  judgment  on  the  scire  facias  is  not  a  new  judgment 
giving  vitality  only  from  that  time,  but  it  is  the  revival 
of  the  original  judgment,  giving,  or  rather  continuing, 
the  vitality  of  the  original  judgment  with  all  its  inci- 
dents, from  the  time  of  its  rendition.  This  is  clear  on 
authority.     Thus  in  Bouvier's  Law  Dictionary,  p.  380, 

'  Jackson  v.  Robins,  IG  J<jlin3.  537;  Jackson  v.  Delaney,  13  Johns.  537;  7 
Am.  Dt:c.  503;  .Jackson  v.  Bartlett,  8  Johns.  3G5. 

^  Lavell  r.  McCurdy,  77  Va.  703;  Camp  v.  Gainer,  8  Tex.  372;  Bullock  v. 
Ballew,  9  Tex.  498. 

'  Vredenberg  r.  Snyder,  0  Iowa,  39;  Denegre  v.  Haun,  13  Iowa,  240. 


205  EXECUTION  ON  DORMANT  JUDGMENTS.  §  C3 

he  says,  citing  1  Term  Rep.  388,  and  2  Saund.  72,  that 
a  sCcVe  facias  is  a  judicial  writ,  founded  on  some  record, 
and  requiring  defendant  to  show  cause  why  the  plain- 
tiff should  not  have  advantage  of  such  record.  When 
brought  to  revive  a  judgment  after  a  j'ear  aud  a  day,  it 
is  but  the  continuation  of  the  original  action.  Thus  in 
4  Harr.  (Del)  397,  and  3  Pet.  300,  it  is  ruled  that  a 
scire  facias  to  renew  a  judgment  is  only  a  continuation 
of  the  former  suit,  and  not  an  original  proceeding.  It 
would  be  easy  to  multiply  authorities,  if  a  fact  so  plain 
and  familiar  needed  their  aid.  In  England  the  judg- 
ment on  the  scire  facias  is,  that  the  original  judgment 
be  revived.  Here  the  amount  of  the  debt  is  ascertained, 
and  judgment  given  for  the  sum  due;  and  this  unfor- 
tunate departure  from  precedents  has  given  rise  to  the 
erroneous  notion  in  the  minds  of  some  members  of  the 
profession,  that  the  judgment  on  the  scire  facias  is  a 
new  and  distinct  judgment,  and  not,  as  it  really  is, 
nothing  more  than  the  revival  of  the  original  judgment, 
the  sum  being  ascertained  for  which  execution  may 
issue.  If  we  pay  any  regard  to  precedent,  the  execu- 
tion ouglit  always  to  be  issued  on  the  original  judg- 
ment, and  not,  as  is  sometimes  ignorantly  done,  on  the 
judgment  on  the  scire  facias,  —  an  irregularity  which 
ought  never  to  have  been  tolerated  by  the  courts."  ^ 

§  93.  Second  Scire  Facias.  —  If  the  plaintiff  who 
sues  out  a  scire  facias  to  revive  a  judgment  does  not 
proceed  upon  it  within  a  year  and  a  day,  it  is  a  discon- 
tinuance of  it,  and  the  plaintiff  must  commence  by  scire 
facias  de  novo.  So  if  he  does  not  sue  out  execution  on 
a  judgment  on  scire  facias  within  a  year,  he  must  revive 
it  again. ^ 

•  Irwin  V.  Nixon's  Heirs,  11  Pa.  St.  419;  51  Am.  Dec.  559. 

'  VanJerheyJcn  v.  Gardcnicr,  9  Johns.  79;  Foster  on  Scire  Facias,  27. 


§§  94,  95  EXECUTION   ON   DORMANT  JUDGMENTS.  206 

§94.  Form  of  Execution. —  Wlicn  the  judgment 
has  born  rovivod  by  scire  facias,  the  forni  of  the  exe- 
cutii>ii  nnist  be  changed  to  correspond  to  the  changed 
state  ol'  the  record.  It  should  show  the  judgment  on 
the  scire  facias'tis  well  as  the  original  judgment.  The 
fieri  facias  sliould  refer  to  and  profess  to  be  founded  on 
the  judgment  in  the  suit  hy  scire  facias;  and  this  is  true 
whether  the  scire  facias  was  necessary  or  "  entirely 
supererogatory."  ^ 

§  95.  Motion  and  Notice  as  a  Substitute  for  Scire 
Facias.  —  It  is  obvious  that  the  objects  sought  and 
accomplished  b}^  the  writ  of  scire  facias,  in  reference  to 
the  revivor  of  dormant  judgments,  could  be  as  readily 
obtained  by  a  mere  motion  and  order  in  the  original 
suit.  Practicall}^,  a  writ  of  scire  facias  is  nothing  beyond 
a  notice  to  parties  in  interest  that  the  applicant  will, 
at  a  stated  time,  appl}'  for  a  writ  of  execution,  which 
notice  is  accompanied  bj-  a  statement  of  the  grounds 
upon  which  the  application  will  be  based.  A  notice 
prepared  and  signed  by  the  plaintiff  or  his  attorr.e}^ 
and  served  by  copy  on  the  defendants  in  the  suit,  if 
living,  or  on  their  representatives,  if  dead,  would  ac- 
complish every  useful  purpose  accomplished  by  a  writ; 
while  the  order  of  the  court,  made  after  hearing  the 
motion  specified  in  the  notice,  would  afford  relief  as 
adequate  as  could  be  granted  by  a  judgment  on  scire 
facias.  Proceedings  by  scire  facias  to  revive  dormant 
judgments  are  gradually  becoming  obsolete,  though  the 
writ  is  still  employed  in  about  one  half  of  the  states  of 
this  Union.  In  those  states  where  this  writ  is  not  in 
use,  the  relief  which  it  formerly  afforded  is  obtained 
on  motion. 

1  Richardaoa  v.  McDougall,  19  Wend.  SO;  Davis  v.  Morton,  1  Bing.  133. 


207  EXECUTION  ON  DOR^LmT  JUDGMENTS.  §§  96,  97 

§  96.  On  Death  of  One  of  the  Parties.  —  When  a 
sole  plaintiff  lias  died  after  final  judgment,  the  admin- 
istrator, or  other  person  authorized  to  represent  the 
deceased,  may  applj^  to  the  court,  show  the  death  of 
the  deceased  and  the  appointment  of  the  applicant, 
and  procure  an  order  entitling  him  to  sue  out  and  con- 
trol the  execution;  or,  in  some  states,  the  executor  or 
administrator  may  obtain  execution  on  presenting  his 
letters  testamentary  or  of  administration  to  the  clerk 
of  the  court.  So  on  the  death  of  defendant,  his  repre- 
sentatives may  on  motion  be  brought  before  the  court 
to  sliow  cause  why  execution  ought  not  to  issue;  and 
in  some  states,  where  the  judgment  is  for  the  recovery 
of  real  or  personal  property,  or  for  the  enforcement 
of  a  lien  thereon,  execution  may  issue  notwithstanding 
the  death  of  defendant,  and  without  leave  of  the  court. 
The  provisions  in  the  different  states  on  this  subject 
are  so  diverse,  that  we  shall  not  attempt  to  make  any 
detailed  statement  of  them. 

§  97.  Execution  on  Judgment  Dormant  by  Lapse 
of  Time. — When  a  judgment  has  become  dormant 
from  lapse  of  time,  a  motion  may  be  made  to  the  court 
for  leave  to  issue  execution.  Usually,  no  pleadings 
are  required.  A  notice  of  the  motion,  describing  the 
judgment  with  sufficient  certainty  to  inform  the  de- 
fendant and  other  persons  interested  of  what  execu- 
tion is  demanded,  is  all  that  is  required  to  authorize  the 
court  to  act.^  In  some  states,  the  notice  must  be  ac- 
companied by  an  afiSdavit,^  while  in  others  not  even  a 
notice  of  the  motion  need  be  given.^     The  defendant 

'  Simpson  v.  Wilson,  IG  Iiid.  428;  Vcnden  v.  Coleman,  23  lud.  49;  Plough 
V.  lleevtM,  a.'JIiid.  181;  Plougli  /-.  Williams,  33  Ind.  182. 
^  Turner  r.  Keller,  '.\H  Mr).  XVZ. 
*  Bryau  v.  Stidger,  17  Cal.  270. 


§97  EXECUTION  ON  DORMANT  JUDGMENTS.  208 

cannot  resist  tlio  aj)plication  by  urging  any  matter 
existing  anterior  to  tlu>  jiulgim'nt.  The  execution 
must  issue  unless  the  juclgnieiit  has  been  satislicd,  or 
cea^txl  to  be  in  force  through  lapse  of  time,  or  the  de- 
fenihmt  lias  by  some  means  been  released  from  his 
liability.'  It  is  no  answer  that  the  defendant  has  judg- 
ments or  other  counterclaims  against  the  plaintiff.'^ 
The  plaintitV  must  show,  to  the  satisfaction  of  the 
court,  that  the  judgment  has  not  been  paid,  and  that 
he  is  still  entitled  to  have  it  enforced.'^  In  New  York, 
where  the  facts  on  which  the  riglit  to  execution  is 
bvised  are  disputed,  the  refusal  of  the  court  to  order  the 
writ  to  issue  will  not  be  reviewed  on  appeal;  but  the 
plaintiff  will  l)e  turned  over  to  his  remedy  by  action  on 
the  judgment.*  The  application  must  be  made  during 
the  lives  of  the  parties,^  after  the  judgment  has  become 
dormant,*'  and  before  it  has  become  barred  by  the  stat- 
ute of  limitations.'  In  New  York,  if  an  original  exe- 
cution is  issued  within  five  years,  an  alias  writ  may 
issue  at  any  time  thereafter  without  leave  of  the  court. 
This  is  clear  under  provisions  of  section  284  of  the  Code 
of  Procedure,  as  amended  in  1858.  Before  this  amend- 
ment, this  section  provided  that  "  after  the  lapse  of  five 
years  from  the  entry  of  judgment,  an  execution  can  be 
issued  only  b}'-  leave  of  the  court."  The  courts  were 
very  evenly  divided  upon  the  effect  of  this  language. 
On  the  one  side,  it  was  contended  that  the  common-law 
rule  was  still  in  force,  allowing  an  allcLS  to  issue  at  any 

•  Leo  r.  Walking  l.'l  How.  Pr.  178;  3  Abb.  Pr.  243. 
»  Btttts  r.  Garr,  20  N.  Y.  383. 

»  Ro«vca  r.  Plougli,  4G  In.l.  350. 

•  Siiumao  r.  Strausa,  52  N.  Y.  404. 

•  IrelauJ  r.  LitchtiolJ,  22  How.  Pr.  178;  8  Bosw.  ^."4. 

•  Wilguj  r.  Bloodgoo.l,  33  Huw.  Pr.  280;  Field  v.  Paulding,  3  Abb.  Pr.  139; 
1  Hilt,  1S7. 

'  Kennedy  r.  Milla,  4  Abb.  Pr.  132. 


209  EXECUTION  ON  DORMANT  JUDGMENTS.  §97 

time,  if  an  original  writ  issued  within  the  time  specified 
by  law;^  on  the  other  side,  it  was  insisted  that  the 
terms  of  the  statute  embraced  alias  as  well  as  original 
writs,  and  therefore  that  no  execution  could  regularly 
issue,  after  five  years,  without  leave  of  the  court.^ 
This  last  view  met  the  concurrence  of  the  supreme 
court  of  Missouri  when  construing  a  similar  statute,  in 
a  case  in  which,  in  referring  to  the  common-law  rule, 
the  court  said:  "Certainly  we  ought  not  to  adopt  this 
worn-out  rule  in  the  construction  of  a  new  statute, 
which,  after  extending  the  year  to  five  years,  prohibits 
the  issuing  of  execution  after  that  period,  unless  by 
leave  upon  motion  after  notice  to  the  adverse  party. 
We  cannot,  and  ought  not,  in  this  manner,  partially 
repeal  the  statute,  by  declaring  that  the  prohibition 
does  not  apply  to  a  case  like  the  present,  where  an 
execution  has  been  sued  out  within  five  years,  although 
more  than  five  years  have  since  elapsed  without  any 
proceeding  upon  the  judgment."^ 

1  Pierce  v.  Crane,  4  How.  Pr.  257;  McSmith  v.  Van  Dnzen,  9  How.  Pr.  245; 
Kresa  v.  Ellis,  14  How.  Pr.  392;  Redmond  v.  Wlieeler,  2  Abb.  Pr.  117. 

*Currie  v.  Noyes,  1  Code  R.,  N.  S.,  198;  Swift  v.  Flanagan,  12  How.  Pr. 
438;  Sacia  v.  Nestle,  13  How.  Pr.  572. 

'  Bolton  V.  Lansdown,  21  Mo.  402. 
Vol.  I.  — 14 


§l»S  DUTll'::^  .\Nl)  UABULITIES  OF  OFFICERS.  210 


riTAPTETl   IX. 

INQUnilES    OOXCEIINTNU    THE    DUTIES     AND     LIABILITIES    OF 
OFFK^KUS  ON   RECEIVING  WRITS  OF  EXECUTION. 

§    9S.  First  tluty  of  ofl'iccr  on  receipt  of  the  writ. 

§    yO.  Iiuiiiiries  liy  otHcer  into  validity  of  the  writ. 

§    lH).i.     hxjuiries  concerning  competency  of  oflicer  to  execute  tlio  writ. 

§  UH).  How  far  oinoer  nuist  iiupiire  into  tlic  jurisdiction  of  the  court. 

§  101.  Tlic  otliccr  ncoil  not  look  bcliiml  the  writ. 

§  KVJ.  Wlictlicr  tiie  ollicer'is  knowleilgo  of  void  nature  of  writ  is  inateriaL 

§  10;i.  Ollicer  must  execute  voiilable  process;  otherwise,  if  it  be  void, 

§  104.  Otliccr  must  see  that  the  writ  is  enforceable  in  his  county. 

§  lOJ.  Suspension  or  satisfaction  of  writ  in  officer's  hands. 

§  100.  \Vhen  the  authority  of  the  oflicer  terminates. 

§  107.  When  the  MTit  must  be  executed. 

§  lOS.  Who  may  control  the  writ. 

§  98.  The  First  Duty  of  Officer  on  Receipt  of  Writ. 
—  So  tar,  (3ur  inquiries  have  bcuii  in  regard  to  the 
form  and  issue  of  execution  against  the  i)roperty  of 
defendants.  We  will  now  assume  that  the  plaintiff 
has  procured  an  execution  to  be  issued.  For  the  pur- 
]")ose  of  our  future  investigations,  it  will,  in  general,  be 
iininaterial  to  ascertain  whether  the  writ  is  an  oriixinal 
or  an  alius;  whether  it  was  sued  out  on  the  original 
judgment  before  the  same  became  dormant,  or  after 
such  judgment  had  been  dormant  and  was  duly 
revived  by  scire  facias,  or  by  some  similar  proceeding 
sanctioned  b\'  statute.  The  two  officers  who  have 
most  to  do  with  writs  of  execution  are  the  clerks  by 
whom  such  writs  are  issued,  and  the  sheriffs  or  con- 
stables by  whom  tlu?y  are  enforced.  The  preceding 
chapters  of  this  work  have  been  mainly  employed  in 
the  consideration  of  matters  falling  within  the  duties 
of  the   clerks;   the  remaining  chapters  will    be    very 


211  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §98 

Lirgely  occupied  by  questions  connected  "with  the  duties 
of  sheriffs  and  constables.  After  the  plaintiff  pro- 
cures his  execution,  his  next  step  will  be  to  place  it 
in  the  hands  of  the  proper  officer  for  service.  This 
officer  is  usually  required,  on  receiving  the  writ,  to 
indorse  thereon  the  precise  time  at  which  it  came  into 
his  hands.  This  requirement  is  useful  because  it 
furnishes  data  by  which  to  determine  the  priority  of 
conflicting  writs,  and  preserves  evidence  by  which  to 
ascertain  the  exact  period  when  the  officer's  rights  and 
responsibilities^  began.  The  negligence  of  the  sheriff 
in  this  respect  has  no  effect  whatever  upon  the  validity 
of  the  writ,  nor  of  any  subsequent  proceedings  taken 
in  the  enforcement  thereof,  for  the  date  of  delivery 
may  be  ascertained  by  any  competent  evidence.^  If, 
on  the  other  hand,  the  officer  does  indorse  upon  the 
writ  a  date  as  that  of  its  reception,  a  question  may 
arise  as  to  whether  the  date  so  indorsed  is  correct.  In 
Pennsylvania  this  question  seems  not  to  be  an  open 
one,  for  in  that  state  the  indorsement  is  conclusive.^ 
We  arc  not  able  to  conceive  any  adequate  reason  for 
this  conclusion,  and  none  is  attempted  to  be  given  by 
the  court.  Tlie  object  of  the  requirement  is  to  pre- 
serve some  memorandum  from  which  the  date  of  the 
reception  of  different  writs  may  be  indicated  and  their 
respective  priorities  determined.  But  the  ultimate 
result  sought  was  to  give  priority  to  the  writ  first  in 
the  officer's  hands ;  and  this  result  would  be  defeated 

»  Williams  v.  Lowndes,  1  Hall,  579. 

»  Hal(;'H  Apijcal,  44  Pa.  St.  4.39;  Johnson  v.  McLane,  7  Blackf.  501;  43  Am. 
Dec.  Wl;  HcHtor  v.  Keith,  1  Ala.  .SIG;  Fletcher  v.  Pratt,  4  Vt.  1S2;  Ulrich  v. 
Dn;yer,  2  Watts,  .3().S;  Do  Witt  7-.  Dunxi,  15  Tex.  lOG;  Ilauaouf.  Barnes's  Lessee, 
3  (iill  &  .J.  3.yj;  'J'J  Am.  Dec.  322. 

»  Poreoa'a  Appeal,  78  Pa.  St.  145, 


J8  90,  90a       DUTIES  AND   LIABILITIES  OF  OFFICERS.  212 

if  ;i  niriv  inist;ilvo  i)t'  tlie  i)ilicer  in  eutoriny  tlic  ilate  is 
to  ])i\^vail  ovor  the  actual  facts  of  tlio  case. 

|<  99.  InqTiiries  to  be  Made  by  Officer  before  Exe- 
cuting-Writ.  -  JJofoiv  uiakiiig'  any  attempt  to  execute 
the  writ,  a  jjrudeut  otHeer  will  stop  to  make  such  in- 
quiries as  are  necessary  to  satisfy  him  whether  it  is 
one  which  he  is  authorized  b}^  law  to  enforce;  whether 
it  will  protect  him  while  acting  in  obedience  to  its 
commands,  or  will  leave  him  as  a  trespasser  without 
any  legal  justification.  He  may,  if  he  sees  proper  so 
to  do,  after  ascertaining  that  the  writ  is  one  under 
which  he  can  justify,  proceed  further,  and  inquire 
whether  it  is  one  which  he  is  bound  to  execute.  We 
shall  devote  this  chapter  to  inquiries  likely  to  be  made 
after  the  issue  of  the  writ,  and  before  any  active  steps 
are  taken  for  its  enforcement. 

jj  99  a.  Inqrilries  respecting  the  Competency  of 
the  Officer  to  Serve  the  Writ. — Before  undertaking  to 
j>roceed  under  a  writ,  an  officer  ought  always  to  ascertain 
whether  he  is  competent  to  execute  it.  This  inquiry 
may  generally  be  answered  from  an  inspection  of  the 
writ.  It  may  be  directed  to  a  different  officer  from 
the  one  to  whom  it  is  delivered,  in  which  case  we 
apprehend  that  it  would  not  justify  proceedings  taken 
by  the  latter.^  If  the  sheriff  is  by  any  reason  disquali- 
fied to  serve  an  execution,  it  oui-ht  to  be  directed  to 
the  coroner.  But  an  error  in  omittin«v  to  so  direct  it 
will  not  require  the  sheriff  to  receive  and  execute  it. 
Even  though  the  sheriff  has  no  interest  in  the  writ  or 
judgment,  as  where  he  is  a  party  in  a  representative 
capacity,  as  administrator  of  a  deceased  person,  he  may 

•  Plaat  f.  Aflderaon,  JG  Fed.  Rci).  914;  Blance  v.  Mize,  72  Ga.  96. 


213  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §99a 

decline  to  serve  the  writ,  and  cannot  be  proceeded 
against  by  motion  for  a  failure  to  return  such  writ.^ 
With  respect  to  a  writ  which  an  officer  is  disqualilSed 
to  serve,  he  must  be  regarded  as  holding  no  official 
capacity.  He  has  no  competency  to  act;  and  though 
he  attempt  to  act,  what  he  does  is  in  contempletion 
of  law  no  action  whatever.^  If  he  has  no  authority  to 
act,  he  can  delegate  no  such  authority  to  another,  and 
hence  his  deputj^  cannot  act  for  him  nor  in  his  name 
in  any  case  in  which  he  is  disqualified.^  The  disquali- 
fication of  the  officer  need  not  appear  from  the  face 
of  the  writ.  It  does  not  depend  upon  his  being  nomi- 
nally a  party  to  the  writ.  He  is,  in  most  of  the  states, 
forbidden  from  executing  any  writ  in  which  he  is  in- 
terested. Hence,  if  he  has  become  the  assignee  of  the 
judgment,  or  if  the  judgment  is  being  enforced  for  his 
indemnity  or  benefit,  he  is  disqualified  to  act,  and  his 
attempted  action  is  a  nullity.*  There  ma}^  perhaps, 
be  instances  in  which  an  officer  may  be  affected  by  the 
result  of  a  suit  without  losing  his  competency  to  serve 
process  therein.  Thus  in  New  Hampshire,  it  has 
been  decided  that  a  sheriff  was  not  incompetent  to 
serve  process  because  the  maintenance  of  the  action 
mio^ht  make  him  answerable  to  defendant  for  the 
amount  of  the  recovery,  though  it  was  conceded  that 
he  would  be  incompetent  if  he  were  the  real  plaintiff 
or  the  real  defendant  for  whose  benefit  the  action  was 

'  Johnson  v.  McLaughlin,  9  Ala.  551. 

»  Knott  V.  Jaiboo,  1  Met.  (Ky.)  504;  Mills  v.  Young,  23  Wend.  314;  Riner 
0.  Stacy,  8  Hiimpli.  228;  May  v.  Walters,  2  McCord,  470;  Singletary  r.  Carter, 
I  Bail.  4G7;  21  Ain.  Dec.  480. 

»  Stewart  v.  Magness,  2  Cold.  310;  88  Am.  Dec.  598;  Fairfield  v.  Hall,  8 
Vt.  68;  Chaml^ers  v.  Thomas,  3  A.  K.  Marsh.  536. 

♦Carpenter  v.  Stilwell,  11  N.  Y.  GI;  Barker  v.  Remick,  43  N.  H.  238; 
Samuel  v.  Commonwealth,  0  T.  B.  Mou.  173 


§  KW  DUTIES  AND  LIABILITIES  OF  OFFICERS.  2U 

prosecuted  or  (KMendtxl.^  If  the  officer  is  an  inhabitant 
i>f  a  mimiri[>al  eor[H)ration,  and  under  the  existing  law 
his  jMOMrrty  may  be  seized  under  a  writ  ai^aiiist  such 
eoiporatioii,  he  is  incompetent  to  serve  a  writ  for  or 
aijfaiiist  it."  A  deputy  sheriiT  is  incomj)ctent  to  execute 
a  writ  to  which  he  is  the  real  party  in  interest.^  In 
some  of  the  states  the  sheriff  and  his  deputies  are 
retj^arcKHl  a-  one  officer,  and  whei^  any  of  them  are  dis- 
qualified all  seem  to  be.  Hence  it  has  been  held  that 
neither  the  sheriff  nor  any  of  his  deputies  could  exe- 
cute a  writ  to  which  another  deputy  was  a  nominal  or 
real  party.*  This  is  a  mistaken  view.  There  is  but 
one  office,  it  is  true,  but  the  only  incumbent  of  that 
office  is  the  principal.  If  the  principal  is  disquahficd, 
the  deputies  must  be,  because  what  they  do  is  in  law 
not  their  act  but  his.  If  a  deputy,  on  the  other  hand, 
is  disqualified,  this  renders  him  incompetent  to  act, 
and  his  principal  cannot  depute  to  him  authority  to 
levy  the  writ.  But  his  incompetency  does  not  affect 
the  principal,  for  the  latter  derives  no  authority  from 
his  subordinate.  Therefore  a  sheriff  may  execute 
process  for  or  against  any  of  his  deputies.^ 

§  100.  Inquiries  re^Tding^  the  Jurisdiction  of  the 
Court. —  While  sheriffs,  and  other  officers  acting  in  a 
similar  capacity,  are  protected  to  a  very  great  extent, 
they,  like  other  persons,  are  bound  to  know  the  law. 
They  must  know  the  general  jurisdiction  of  the  courts 
whose  process  thoy  are  called  to  enforce;  for  if  a  writ 

>  Barker  t-.  Remick,  43  N.  H.  233. 

'  Sute  r.  Walpolo,  15  N.  H.  2G;  Barker  v.  liemick,  43  N.  II.  258;  Fairfield 
r.  Hall,  8  Vt.  G8;  Towa  of  Essex  v.  Prentiss,  G  Vt.  47. 

*  Chamliera  r.  Thomas,  1  Litt.  2G8;  Samuel  v.  Commonwealth,  G  T.  B. 
Mon.  17.3. 

*  Dame  r.  Gilmore,  51  Mc.  544. 
»  Ford  r.  Dyer,  2G  iliaa.  243. 


215  DUTIES  AND   LIABILITIES  OF  OFFICERS.  §100 

IS  placed  in  their  hands  which  the  court  had  no  author- 
ity under  any  circumstances  to  issue,^  or  if  the  court 
had  authority  to  issue  similar  writs,  but  it  appears, 
from  this  particular  writ,  that  the  subject-matter  of  the 
action  was  one  over  which  the  court  had  no  jurisdiction, 
then  the  writ  is  absolutely  void,  and  cannot  justify  any 
one  in  obeying  its  commands.^  The  officer  must  ex- 
amine the  writ,  and  when  it  appears  therefrom  that  the 
judgment  was  void,  either  for  want  of  jurisdiction  over 
the  subject-matter  of  the  suit  or  over  the  parties 
thereto,  he  must,  if  he  would  protect  himself  from  lia- 
bility, refuse  to  proceed  under  the  writ.^     There  are 

1  Sbergold  v.  Hollo^yay,  2  Strange,  1002;  Brown  r.  Compton,  8  Term  Rep. 
424;  Allen  v.  Greenlee,  2  Dev.  370;  Howard  v.  Clark,  43  Mo.  344;  Batclielder  v. 
Currier,  45  N.  H.  4G0. 

2  Hull  V.  Blaisdell,  1  Scam.  332;  Gurney  v.  Tafts,  37  Me.  130;  58  Am.  Dec. 
777;  Wise  v.  Withers,  3  Crancb,  331;  Pearce  v.  Atwood,  13  Mass.  324;  Brown 
V.  Compton,  8  Term  R,ep.  424;  Stevens  v.  Wilkins,  6  Pa.  St.  260;  Fisher  v. 
McGirr,  1  Gray,  45;  Gl  Am.  Dec.  3G1;  Howard  v.  Clark,  43  Mo.  344;  Entick 
V.  Carriugton,  2  Wils.  275;  Groome  v.  Forrester,  5  Maule  &  S.  314. 

3  Baldwin  v.  Hamilton,  3  Wis.  747;  Garratt  v.  Morely,  1  Q.  B.  18;  Camp- 
bell V.  Webb,  11  Md.  482;  Grumon  v.  Raymond,  1  Conn.  48;  6  Am.  Dec.  200; 
Howard  v.  Gossett,  10  Q.  B.  359;  Tobin  v.  Addison,  2  Strob.  3.  In  the  case 
of  Dynes  v.  Hoover,  20  How.  80,  the  action  was  brought  against  a  ministerial 
officer  for  executing  the  sentence  of  a  court-martial.  It  appeared,  how- 
ever, that  the  court  had  jurisdiction,  and  the  officer  was  therefore  held  not 
liable.  The  court  undertook,  however,  to  state  the  general  rules  governing 
ministerial  officers,  and  in  doing  so,  said:  "  That  where  a  court  has  no  juris- 
diction over  the  subject-matter  it  tries,  and  assumes  it,  or  where  an  inferior 
court  has  jurisdiction  over  the  subject-matter,  but  is  bound  to  adopt  certain  rules 
in  its  proceedings,  from  lohich  it  deviates,  whereby  the  -proceedings  are  rendered 
coram  non  judicc,  that  trespass  for  false  imprisonment  is  the  proper  remedy, 
where  the  lilierty  of  the  citizen  has  been  restrained  by  process  of  the  court,  or 
by  the  execution  of  its  judgment.  Such  is  the  law  in  either  case,  in  respect 
to  the  court  which  acts  without  having  jurisdiction  over  the  subject-matter; 
or  which,  having  jurisdiction,  disregards  the  rules  of  proceeding  enjoined  by 
the  law  for  its  exercise,  so  as  to  render  the  case  coram  nonjudice.  Colo's  Case, 
John.  W.  171;  Dawson  v.  Gill,  1  East,  G4;  Smith  v.  Boucher,  Hardin,  71; 
Martin  v.  Marshall,  Hob.  68;  Weaver  v.  Clifford,  2  Bulst.  64;  2  Wils.  385. 
In  both  cases,  the  law  is,  that  an  officer  executing  the  process  of  a  court  which 
has  acted  without  jurisdiction  over  the  subject-matter  becomes  a  trespas-ser, 
it  being  better  for  the  peace  of  society,  and  its  interests  of  every  kind,  that 


5  UK)  DUTIES  AND  LIABILITIES  OF  OFFICERS.  216 

ooi-tain  circumstances  with  respect  to  the  form  and  is- 
suiiiLj:  of  the  writ  to  which  he  must  also  give  attention. 
Thus  wluri'  the  writ  disclosed  on  its  face  the  reasons 
for  its  prcuuiturc  issuinu;,  and  they  wore  insufficient  in 
law.  tlic  olliccr  was  held  not  to  be  justified  in  enforcing 
it.'  While  wo  do  not  concur  in  the  result  reached  in 
this  instance,  we  concede  that  there  may  be  cases  in 
which  executions  constitute  no  justification  to  the  of- 
ficers acting  under  them,  because  of  a  want  of  power  to 
issue  them,  or  because  their  form  and  substance  are  not 
such  as  to  confer  any  authority  upon  the  persons  to 
whom  they  are  delivered  for  service.  The  cases  here 
referixxl  to  can  only  be  those  in  which  the  writs  are 
void  upon  their  face.  We  have  endeavored  in  the  pre- 
ceding chapters  to  show  when  writs  are  so  void.  The 
decisions  upon  the  subject  are  not  harmonious,  and  the 
officer  must,  for  his  protection,  inform  himself  respect- 
ing the  law  of  his  own  state.  A  writ  issued  out  of  a 
court  which  never  had  authority  to  issue  it,  or  whose 
authority  had  terminated,  or  upon  a  judgment  which  it 
had  in  no  circumstances  any  power  to  enter,  or  issued 
by  some  officer  who  had  no  authority  to  issue  it,^  is  un- 
questionably void.  Beyond  this,  little  or  nothing  can 
be  affirmed  without   meeting  with   dissent  in  one  or 

the  responsibility  of  determining  whether  the  court  has  or  has  not  jurisdiction 
sbouM  be  upon  the  officer,  than  that  a  void  writ  should  be  executed.  This 
court,  so  far  back  as  the  year  1806,  said,  in  the  case  of  Wise  v.  Withers,  3 
Cranch,  331,  p.  337  of  that  case:  'It  follows,  from  this  opinion,  that  a  court- 
martial  has  no  jurisdiction  over  a  justice  of  the  peace  as  a  militiaman;  he 
could  never  be  legally  enrolled;  and  il  is  a  principle  that  a  decision  of  such  a 
tribunal,  in  a  case  clearly  without  its  jurisdiction,  cannot  protect  the  officer  who 
executes  it.  The  court  and  t/ie  officers  are  all  trespassers.'  2  Brown,  124;  10 
Cranch,  09;  Mark's  Rep.  118;  8  Term  Rep.  424;  4  Mas.s.  234."  An  officer 
cannot  justify  under  a  writ  which  is  not  valid  in  form.  Taylor  v.  Morrison,  7 
Chic.  L.  N.  370. 

>  Clark  r.  Bond,  7  Baxt.  288. 

»  Chalker  v.  Ives,  55  Pa.  St.  81;  Hilbiah  v.  Hower,  58  Pa.  St.  9a 


217  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §100 

more  of  tlie  states/  A  writ  issued  under  a  supposed 
statute,  which  is  in  law  no  statute  whatever  because 
unconstitutional,  is  void,  and  will  not  protect  an  officer." 
The  same  result  follows  where  the  tribunal  whose 
sentence  or  judgment  is  the  basis  of  the  writ  is  not 
authorized  by  law,^  or  being  authorized  by  law,  has  no 
jurisdiction  over  the  subject-matter  in  the  particular 
case,  as  where  a  state  court  issues  process  in  rem  to  en- 
force a  maritime  lien,*  or  a  justices'  court  enters  judgment 
for  a  sum  in  excess  of  its  jurisdiction.^  The  general 
expression  of  many  of  the  cases  is  that  the  process  must 
"be  fair  on  its  face"  to  warrant  the  officer  in  implicitly 
relying  upon  it  for  protection.  By  this  expression  we 
do  not  understand  them  to  intend  that  there  must  be 
no  irregularity  in  its  features,  and  no  roughness  or  dis- 
coloration in  its  complexion;  for  imperfections  so  slight 
in  character  as  these  the  court  may  compel  the  parties 
to  overlook,  and  where  the  parties  maj''  be  required  to 
abide  by  the  process,  it  always  justifies  an  officer  in 
whatever  he  may  do  by  its  command. 

With  respect  to  process  proceeding  from  a  court 
of  limited  jurisdiction,  the  inquiries  which  the  officer 
called  upon  to  enforce  it  must  pursue  are  not  substan- 
tially variant  from  the  inquiries  required  in  other  cases. 
He  must,  at  his  peril,  know  what  is  the  jurisdiction  of 
the  court, — what  judgments  it  may  lawfully  enter,  and 
what  writs  it  may  grant  for  their  enforcement.     If  the 

1  See  chapters  II.  and  III,  for  essential  matters  respecting  the  issuing  ami 
form  of  writs  of  execution. 

■■' Fisher  i>.  McGirr,  1  Gray,  45;  Gl  Am.  Dec.  387;  Ely  v.  Thompson,  3  A. 
K.  Marsh.  70. 

»  Millig:iii  r.  Hovey,  3  BLss.  13. 

*  Cainpljcli  V.  Shermau,  3.j  Wis.  103. 

'  Rosen  V.  Fiscliol,  4-4  Conn.  371;  Gates  v.  Neimeyxjr,  54  Iowa,  110;  PatzaU  v. 
Von  Gerichten,  10  Mo.  App.  424. 


§  h)l  DUTIES  AND  LIABILITTES  OF  OFFICERS.  218 

wTit  issiiod  appears  upon  its  iaco  to  liave  rssucd  in  a 
pi\)per  cuso  ami  by  ii  competent  officer,  lie  nuiy  safely 
yielil  ol)oJieuce  theivto.' 

jj  101.  Officer  need  not  Look  behind  the  Writ. — 
The  shentr  may  Innit  his  inquiries  to  an  inspection  of 
tlie  writ.  It"  the  wiit  is  issued  by  the  proper  officer, 
in  due  form,  and  appi'ars  to  proceed  from  a  court  com- 
petent to  exercise  jurisdiction  over  the  subject-matter 
of  the  suit,  to  grant  the  relief  granted  and  enforce  it  by 
the  writ  is>urd,  and  there  is  nothing  on  the  face  of  the 
writ  showiuL;-  a  want  of  jurisdiction  over  the  person  of 
the  defendant,  or  showing  the  writ  to  be  clearly  illegal 
from  some  other  cause,  the  officer  may  safely  proceed. 
That  from  some  cause,  not  shown  in  the  writ,  the  judg- 
ment or  writ  was  irregular  or  void,  will  be  of  no  conse- 
quence to  him."     He  can  justify  upon  producing  the 

»  Billings  r.  Russell,  2.3  Pa.  St.  189;  G2  Am.  Dec.  330;  flott  v.  Mitchell,  7 
Blackf.  270;  Savacool  r.  Boughton,  5  Wend.  170;  21  Am.  Dec.  181,  and  note. 

'  Sprague  r.  Birehard,  1  Wis.  457;  GO  Am.  Dec.  393;  Warner  v.  Shed,  10 
Johns.  K'.S;  Rue  v.  Terry,  C3  Barb.  40;  Gray  v.  Kimball,  42  Me.  299;  Earl  v. 
Camp,  lu  Weud.  5G2;  Billings  r.  Russell,  23  Pa.  St.  189;  02  Am.  Dec.  330;  Mason 
u.  Vance,  1  Sueed,  178;  GO  Am.  Dec.  144;  Hill  v.  Bateman,  2  Strange,  710; 
State  r.  Crow,  G  Eng.  G42;  McDonald  v.  Wilkie,  13  III.  22;  54  Am.  Dec.  423; 
Andrews  r.  Morris,  1  Ad.  &  E.,  N.  S.,  4;  McLean  v.  Cook,  23  Wis.  .304;  Clark 
I.  May,  2  Cray,  410;  Donahue  v.  Shed,  8  Met.  326;  Hargett  v.  Black.shear, 
Tayl.  (N.  C.)  107;  Harmon  v.  Gould,  Wright  (Ohio),  709;  Churchill  v. 
Churchill,  12  Vt.  OGl;  Higdon  r.  Conway,  12  Mo.  295;  Taylor  v.  Alexander,  G 
Ham.  145;  Cady  v.  Quinn,  G  Ired.  191;  Howard  v.  Clark,  43  Mo.  344;  P.rown 
r  Heinlerson,  1  Mo.  13-t;  Smith  r.  Miles,  1  Hemp.  34;  Whitney  o.  Jenkinson, 
3  Wij.  407;  Twitcliell  r.  Shaw,  10  Cush.  48;  57  Am.  Dec.  80;  Allen  r.  Corlew, 
10  Kan.  70;  Crockett  r.  Latimer,  1  Humph.  273;  Carter  v.  Purrington,  2 
Allen,  220;  Young  r.  Wise,  7  Wis.  128;  State  v.  Giles,  10  Wis.  101;  Bogert  v. 
Phelps,  14  Wis.  88;  Milburn  r.  Gilman,  11  Mo.  C4;  Johnson  v.  Fox,  51  Ga.  270; 
Woods  r.  Davis,  34  N.  H.  .328;  Keniston  v.  Little,  10  Fost.  318;  G4  Am.  Dec. 
297;  BlancJiard  r.  Gfws,  2  N.  H.  491;  Ortman  v.  Greenman,  4  Mich.  291; 
McElhaney  r.  Flynn,  23  Ala.  819;  Avcrctt  r.  Thompson,  15  Ala.  G78;  Cogburn 
r.  Sijcncc,  15  Ala.  549;  50  Am.  Dec.  140;  Dixon  v.  Watkins,  4  Eng.  139; 
Bickcratair  r.  Doub,  19  Cal.  1(X»;  79  Am.  Dec.  204;  Watson  r.  \Vat3on,  9  Conn. 
141;  23  Am.  Dec.  324;  Carter  r.  Clark,  28  Conn.  512;  Noth  v.  Crofut,  30  Conn. 


219  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §101 

» 

writ.  It  is  tlierefore  immaterial  to  him  that  the  judg- 
ment does  not  correspond  to  the  writ,  or  that  there 
never  was  any  such  judgment  in  existence.^ 

The  case  of  Savacool  v.  Boughton,  5  Wend.  170,  21 

580;  Barnes  v.  Barber,  1  Gilm.  401;  Parker  v.  Smith,  1  Gilm.  411;  Hunt  v. 
Ballew,  9  B.  Mou.  300;  Hoskins  r.  Helm,  4  Litt.  310;  14  Am.  Dec.  133;  Clay 
V.  Capertou,  1  T.  B.  Mon.  10;  15  Am.  Dec.  77;  Percefull  r.  Commonwealth,  3  B. 
Mon.  347;  Chase  r.  Fish,  10  .Me.  132;  Carle  v.  Delesdernier,  13  Me.  2G3;  29 
Am.  Dec.  50S;  State  v.  McXally,  34  Me.  210;  50  Am.  Dec.  G50;  Wilton  M. 
Co.  1".  Butler,  34  Me.  431;  Robinson  v.  Barrows,  48  Me.  ISO;  Deal  v.  Harris,  8 
Md.  40;  63  Am.  Dec.  GS6;  Wilmarth  v.  Burt,  7  Met.  257;  Chase  v.  Ingalli,  97 
Mass.  524;  Bercrin  v.  Haywartl,  102  Mass.  414;  Clark  v.  Norton,  6  Minn.  412; 
Woodruff  V.  Barrett,  3  Green,  40;  Rammel  v.  Watson,  31  N.  J.  L.  281;  Man- 
gold V.  Thorpe,  33  N.  J.  L.  134;  French  v.  Willett,  4  Bosw.  G49;  Cornell  v. 
Barnes,  7  Hill,  35;  Noble  v.  Halliday,  1  N.  Y.  330;  Hutchinson  v.  Brand,  9 
N.  Y.  208;  Chegaray  v.  Jenkins,  5  N.  Y.  381;  Rosenficld  v.  Palmer,  9  Alb.  L. 
J.  191;  State  v.  Morgan,  3  Ired.  186;  38  Am.  Dec.  714;  State  v.  Ferguson,  67 
N.  C.  219;  McHugh  r.  Pundt,  1  Bail.  441;  Brown  v.  Wood,  1  Bail.  457;  Millor  v. 
Grice,  1  Rich.  147;  Traylor  r.  McKcowu,  12  Rich.  251;  Faris  v.  State,  3  Ohio 
St.  159;  Fox  v.  Wood,  1  Rawle,  143;  Paul  v.  Vankirk,  6  Binn.  123;  Swires 
V.  Brotherline,  41  Pa.  St.  135;  80  Am.  Dec.  601;  Atkinson  v.  :\Iicheaux,  1 
Humph.  312;  Stevenson  v.  McLean,  5  Humph.  332;  42  Am.  Dec.  434;  Barnijs 
V.  Hayes,  1  Swan,  304;  Fall  Creek  Coal  Co.  v.  Smith,  71  Pa.  St.  230;  Earle 
V.  Thomas,  14  Tex.  583;  Hill  v.  Wait,  5  Vt.  124;  Gage  v.  Barnes,  11  Vt.  195; 
Piersonz;.  Gale,  8  Vt.  509;  30  Am.  Dec.  487;  Brown  v.  Mason,  40  Vt.  157; 
Loomis  r.  Wheeler,  21  Wis.  271;  Jliller  v.  Brown,  3  Mo.  127;  23  Am.  Dec. 
693;  Elsemore  v.  Longfellow,  76  Me.  128;  Erskine  v.  Hohnbach,  14  Wall.  613; 
Coleman  v.  McAnulty,  16  Mo.  173;  57  Am.  Dec.  229;  Orr  v.  Box,  22  Minn.  485; 
Yeager  v.  Carpenter,  8  Leigh,  454;  31  Am.  Dec.  665;  Barr  v.  Royles,  96  Pa. 
St.  31.  Hence  the  officer  is  protected  though  the  writ  runs  against  a  deceased 
person.     Bragg  v.  Thompson,  19  S.  C.  572. 

»  Turner  v.  Felgate,  Lev.  95;  Britton  v.  Cole,  12  Mod.  178;  Jones  r.  Wil- 
liams, 8  Meea.  &  W.  349;  Camp  v.  Moscley,  2  Fla.  171;  Barker  v.  Braham,  3 
Wils.  376;  Cotes  v.  Michill,  3  Lev.  20;  Moravia  v.  Sloper,  Willes,  30;  Gott  r. 
Mitchell,  7  Blackf.  270;  Burton  v.  Swcaney,  4  Mo.  1;  Andrews  v.  Morris,  1 
Ad.  &  E.,  N.  S.,  4;  Etheridgc  v.  Edwards,  1  Swan,  420;  Davis  v.  Cooper,  6  Mo. 
148;  Kleissendorff  r.  Fore,  3  B.  Mon.  473;  Traylor  v.  McKcown,  12  Rich.  251; 
Jack.sonr.  Hobson,  5111.  411;  Keys  v.  Grannis,  3  Nov.  548.  Therefore,  if  an 
execution  purport.'}  to  be  issued  on  a  judgment  of  the  county  court,  when  in 
fact  it  is  upon  a  tran.script  of  a  judgment  of  an  inferior  court,  and  is  invalid 
because  not  issued  in  the  manner  providc<l  for  executions  upon  such  transcripts, 
the  ofiicer  cannot  bo  hold  responsible  as  a  trespasser,  there  being  nothing  to 
warn  him  that  he  was  not  acting  un<ler  a  judgment  of  the  county  court.  Hill  r. 
Hayne.M,  9  Alb.  L.  J.  276;  54  N.  Y.  153.  Contra,  that  oliiccr  must  produce 
judgment,  Hamilton  v.  Decker,  2  South.  813. 


§  101  DUTIES  AIO)  UABTLnTES  OF  OFFICERvS.  220 

Am.  IVc.  181.  is  a  IrailiiiL:;  ease  on  tliis  snlvjoct,  when 
the  process  issues  out  of  a  eourt  of  limited  jurisdiction. 
In  this  ease,  Judsj^e  ^larey,  after  reviewinj^  tlie  English 
and  Ameri<"an  autliorities  tlien  existing,  concluded  as 
I'dUows:  "In  my  judgnuMit,  the  same  |n'inci[)le  which 
qives  protection  to  a  ministerial  ollieer,  who  executes 
•;  r  jtitjcess  o{  a  eoint  of  (jcncral  jurisdiction,  should 
protect  him  when  he  executes  the  process  of  a  court 
of  limited  jurisdiction,  if  the  subject-matter  of  the  suit  is 
within  that  jurisdiction,  and  nothing  appears  on  the 
face  of  the  process  to  show  that  tho  j^crson  was  not  also 
within  it.  The  following  propositions,  I  am  disposed 
to  l)clie\e,  will  be  found  to  be  well  sustained  by  reason 
and  authority :  That  where  an  inferior  court  has  not 
jurisdiction  of  the  subject-matter,  or,  having  it,  has 
not  jurisdiction  of  the  person  of  the  defendants,  all  its 
proceedings  are  absolutely  void ;  neither  the  members 
of  the  court  nor  the  plaintiflf  (if  he  procured  or  as- 
sented to  the  i^roceedings)  can  derive  any  protection 
from  them  when  prosecuted  by  a  party  aggrieved 
thereby.  If  a  mere  ministerial  officer  executes  any 
process,  upon  the  face  of  which  it  appears  that  the 
court  had  not  jurisdiction  of  the  subject-matter,  or  of 
the  person  against  whom  it  is  directed,  such  process 
will  afford  him  no  protection  for  acts  done  under  it. 
If  the  subject-matter  of  a  suit  is  within  the  jurisdiction 
of  a  court,  but  there  is  a  want  of  jurisdiction  as  to  the 
person  or  place,  the  officer  who  executes  process  issued 
in  such  suit  is  no  trespasser,  unless  the  want  of 
jurisdiction  appears  by  such  process."^  Nor  is  a  min- 
isterial officer  compelled  to  make  investigations  to  as- 

'  Followed  in  Cooa  r.  Coiigdon,  12  Wend.  49G;  Parker  r.  Walrod,  16 
Wend.  514;  .30  Am.  Dec.  124;  Chcgaray  v.  Jenkins,  1  Scld.  376;  Cornell  v. 
Barue«,  7  U  ill,  35;  Sheldon  v.  Vanbuakirk,  2  N.  Y,  477. 


221  DUTIES  AND  LIABILITIES   OF  OFFICERS.  §  lOT 

certain  whether  the  mao^istrate  or  other  officer  issuinor 
the  process  is  an  officer  de  jure,  or  an  officer  de  facto 
merely.  ''The  principle  is  well  settled  that  the  acts 
of  officers  de  facto  are  a?  valid  and  efiPectual  when  they 
concern  the  public,  or  the  rights  of  third  persons,  as 
though  they  were  officers  de  jure."^  Officers  are  also 
protected  where,  though  the  court  had  jurisdiction,  the 
writ  is  void  as  between  the  parties  thereto  on  account 
of  something  not  appearing  on  the  face  thereof  The 
sheriff,  therefore,  need  not  make  any  inquiries  to  as- 
certain whether  the  judgment  has  been  satisfied.  He 
may  safely  assume  that  the  plaintiff  would  not  ask  for, 
nor  the  clerk  or  masjistrate  issue,  a  writ  to  enforce  a 
paid  judgment.^  The  rule  that  an  officer  may  justify 
under  a  writ  valid  on  its  face  is  one  of  protection 
merely.  If  he  seeks  to  maintain  an  action,  he  cannot 
rely  upon  the  process  alone,  but  must  support  it  by  a 
valid  judgment.^  So  there  are  cases  in  which  the  pro- 
cess alone  may  not  be  a  protection.  Thus  an  officer 
may  levy  upon  property  in  the  possession  of  a  stranger 
to  the  writ,  who  derived  title  from  the  defendant  in 
execution  prior  to  the  issuance  or  levy  of  the  writ. 
Tlie  officer  may  retain  the  property  if  he  can  show 
that  the  transfer  was  actually  or  constructively  fraud- 
ulent, and  that  he  is  in  position  to  attack  it  on  that 
ground.  He  is  not  in  position  to  maintain  such  attack 
unless  the  plaintiff  in  execution,  whom  he  represents, 
is  a  creditor  by  judgment,  or  a  creditor  having  a  lien 
on  the  property.     That  the  plaintiff  is  such  creditor  is 

>  Wilcox  r.  Smith,  5  Wend.  2.31;  21  Am.  Dec.  213;  Thulemeyer  v.  Jones, 
V  Tex.  5(}0;  Lavcr  t;.  McGlachlin,  28  Wis.  .304. 

^  Mcison  V.  Vance,  1  Sliced,  178;  GO  Am.  Dec.  144;  Luddington  v.  Peck,  ? 
Conn.  700;  Lewid  ?•.  Palmer,  G  Wend.  307. 

»  Dunlap  r.  Hunting,  2  Dcnio,  G43;  43  Am.  Dec.  763;  Earl  v.  Camp,  IG 
Wend.  562;  Horton  v.  Ucnderabot,  1  Hill,  118. 


§  U)2  DUTIES   ANP   LIABILITIES  OF  OFHCERS.  222 

not  established  by  the  execution  alone.  Tlio  ofllcer, 
to  make  bis  justifu'ation  loniplrto,  must  estabbsli  it  in 
some  other  mode.  If  he  rehes  upon  the  execution,  lie 
nuist  support  it  by  a  valid  judi^ment/  or  by  some  other 
et)mpeteut  evidence,  of  the  existence  of  a  debt  of  such 
a  character  as  to  ail'ord  a  justification  lor  the  seizure 
and  detention  of  the  property.^  This,  however,  is 
scarcilv  an  exception  to  the  rule  that  an  otKcer  is  pro- 
tected bv  a  writ  regular  on  its  face,  for  the  writ  does 
not  purport  to  confer  innnunity  for  any  acts  not  au- 
thorized bv  it.  It  does  not  expressly  sanction  the 
seizure  of  any  property  other  than  the  defendant's, 
and  if  the  othcer  undertakes  to  subject  other  property 
to  the  writ,  he  must  first,  at  his  peril,  satisfy  himself 
of  the  existence  of  all  the  circumstances  essential  to 
justify  his  action. 

§  102.  Wlietlier  the  Officer's  Knowledge  of  Irregu- 
larities io  Material.  —  The  authorities  cited  in  the  pre- 
ceding section  abundantly  sustain  the  proposition  that 
the  officer  may  limit  his  inquiries  to  an  inspection  of 
the  face  of  the  writ;  and  that  he  is  not  to  be  held 
responsible  for  anything  of  which  the  writ  gives  him 
notice,  and  of  which  he  has  no  actual  knowledge. 
But  in  some  instances,  the  officer's  knowledge  may 
have  placed  him  in  possession  of  the  very  facts  which 
render  the  writ  void  between  the  parties  thereto. 
Does  this  knowledge  become  a  material  fact  in  deter- 
mining whether  he  is  responsible  for  acting  in  obedi- 

'  State  r.  Rucker,  19  Mo.  App.  587;  Tliatcher  r.  Miiack,  7  111.  App.  u35; 
Bean  r.  Loftus,  48  Wis.  371;  4  N.  W.  Rep.  334. 

»  Scxey  r.  Adkinson,  .34  Cal.  34G;  91  Am.  Dec.  698;  Damon  v.  Bryant,  2 
Pick.  412;  Manlock  v.  White,  20  Cal.  COO;  Rlnclioy  v.  Rtryker.  28  N.  Y.  52; 
84  Am.  Dec.  .324;  Howard  r.  Manderfield,  31  Minn.  337;  17  N.  W.  Rep  946; 
Bogert  r.  Phelps,  14  Wi-t.  89. 


223  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  1C2 

ence  to  the  writ?  To  this  question  the  highest  courts 
in  some  of  the  states  have  given  a  response  in  the  nega- 
tive. To  go  beyond  the  process  would,  in  the  opinion 
of  the  courts  of  Xew  York,  "lead  to  a  new  and  trouble- 
some issue,  which  would  tend  greatly  to  weaken  the 
reasonable  protection  to  ministerial  officers.  Their 
duties,  at  best,  are  sufficiently  embarrassing  and  re- 
sponsible; to  require  them  to  act  or  not  at  their  peril, 
as  they  may  be  supposed  to  know  or  not  the  technical 
regularity  of  the  party  or  magistrate,  seems  to  me  an 
innovation  upon  previous  cases,  and  against  the  reasons 
and  policy  of  the  rule.  The  experience  of  the  officer 
will  soon  enable  him  to  determine  whether  the  process 
is  in  regular  form  or  not,  or  he  can  readily  obtain  the 
necessary  advice ;  but  he  must  be  presumed  to  be  wiser 
than  the  magistrate,  if  even  a  knowledge  of  the  proceed- 
ings would  enable  liim  to  decide  correctly  if  they  hap- 
pen to  be  erroneous."  ^  In  a  later  case  in  the  same 
state  a  warrant  was  issued  by  the  inspectors  of  elec- 
tions, and  was  executed  by  an  officer  who  knew  that 
these  inspectors  were  without  jurisdiction.  The  court, 
in  holding  the  officer  justifiable,  said:  "Although  the 
inspectors  had  no  jurisdiction  of  the  subject-matter, 
yet,  as  the  warrant  was  regular  upon  its  face,  it  was 
a  sufficient  authority  for  the  arrest.  The  knowledge  of 
the  officer  tliat  the  inspectors  had  no  jurisdiction  is  not 
important.  He  must  be  governed  and  is  protected  by 
the  process,  and  cannot  be  affected  by  anything  he  has 
heard  or  learned  out  of  it."^  It  has  also  been  decided 
that  an  officer  is  justified  in  serving  an  execution,  al- 

>  Wobber  V.  Gay,  24  Wcml.  484. 

'^  People  V.  Warren,  5  Hill,  440;  to  same  effect,  Gott  v.  Mitchell,  7  Blackf. 
270;  WaLsoii  v.  Watson,  U  Conn.  240;  23  Am.  Dec.  324;  Tierncy  r.  Frazier,  57 
Tex.  437;  Ilainey  v.  State,  20  Tex.  App.  455;  see  also  State  v.  Weed,  1  Fost. 
262;  53  Am.  Dec.  188. 


§  102  PrTIES  AND  UABILITIES  OF  OFFICERS.  2'24 

though  ho  know  that  tlio  dofondant  liad  boon  roloased 
in  procoocHngs  in  hankruptoy  from  tho  judgment  on 
which  tho  oxocution  issued.^  Tho  rulo  tliat  protects 
officers  from  all  jurisdictional  and  other  infirmities  not 
disclosed  upon  tho  face  of  the  process,  and  not  other- 
wise brouGfht  luniio  to  their  knowlcdu.-c,  seems  to  us 
sufficiently  comprehensive.  All  mere  errors  and  ir- 
regularities in  the  process,  such  as  arc  not  of  so  seri- 
ous a  character  as  to  render  it  void  as  between  the 
parties  thereto,  ought  not  to  be  noticed  by  the  sheriff; 
for  as  long  as  the  parties  acquiesce,  certainly  he  ought 
not  to  be  liable  for  executing  the  writ.  But  there  is  a 
class  of  cases  in  which  the  process,  on  account  of  some 
infirmity  in  the  judgment  or  in  the  writ,  has  no  valid- 
ity. Not  only  the  plaintiff  but  also  innocent  purchasers 
are  precluded  from  acquiring  any  benefit  therefrom. 
But  as  ministerial  officers  are  constantly  called  on  to 
execute  process,  and  are  therefore  frccjuently  exposed 
to  the  hazard  of  being  left  without  protection  for  their 
acts  done  in  good  faith,  tho  law  has  wisely  interposed 
in  their  behalf,  in  order  that  their  position  should  not 
be  intolerable.  This  indisposition  has  not  boon  such 
as  in  all  cases  to  thrust  a  shield  between  them  and 
the  persons  whom  they  have  injured  in  their  attempts 
to  execute  void  writs.  It  is  clear  that  if  the  writ  gives 
notice  of  the  matters  rendering  it  void,  the  officer  is 
responsible;  for  while  it  is  reasonable  to  protect  officers 
against  secret  vices  in  the  proceedings,  it  is  unreason- 
able that  they  should  be  encouraged  in  the  perpetra- 
tion of  a  legal  wrong  of  which  they  have  been  notified. 
But  suppose  that,  though  the  writ  is  in  due  form,  the 
officer  has  outside  of  the  writ  been  informed  of  a  state 

*  Whitwnrth  r.  aiftoo,  1  Moody  &  R.  531;  Tarltou  v.  Fisher,  2  Doug.  G71. 


225  DUTIES  AND  LIABILITIES  OF  OPFICERS.  §  103 

of  facts  which,  if  set  forth  in  the  writ,  would  make  him 
answerable  as  a  trespasser  for  its  attempted  execution, 
is  it  any  greater  hardship  to  require  him  to  know  the 
legal  consequence  of  these  facts  than  it  is  to  make  a 
similar  requirement  when  his  knowledge  had  been  ob- 
tained from  an  inspection  of  the  writ?  If  he  is  com- 
petent to  determine  the  question  in  the  one  case,  he  i.3 
equally  so  in  the  other.  If  the  judgment  set  forth  in 
the  writ  was  not  in  truth  rendered,  or  was  rendered  in 
a  case  where  there  was  an  absence  of  jurisdiction  either 
over  the  subject-matter  or  over  the  parties;  or  if  from 
any  other  cause  the  proceeding  about  to  be  taken  by 
the  officer  is  void  as  between  the  parties,  and  can 
therefore    result   in  nothincj   but  outrao'e   and  wrono^ 

o  o  o 

perpetrated  under  the  forms  of  law,  —  wh}^  should  he  be 
encouraged  to  proceed?  If  he  is  ignorant,  he  may 
properly  be  awarded  the  protection  we  accord  to  the 
innocent  in  the  pursuit  of  a  path  mistaken  for  that  of 
duty.  But  if  he  knows  of  these  destroying  vices,  he 
has  no  duty  to  proceed.  In  proceeding,  he  is  the  will- 
ful and  conscious  instrument  of  legal  oppression,  volun- 
tarily choosing  to  seize  the  person  or  property  of  the 
defendant  in  professed  obedience  to  a  mandate  which 
he  knows  to  be  destitute  of  legal  sanction;  and  he 
ought  to  be  held  answerable  as  a  trespasser  as  rigor- 
ously as  any  party  to  the  suit,  or  any  other  voluntary 
participant  in  the  wrong.^ 

§  103.  OflB-cer  must  Execute  Voidable  Process  — 
Otherwise  if  it  be  Void.  —  When  an  officer  has  de- 
cided that  the  execution  delivered  to  him  for  service 

»  Spraguo  r.  Birchar.l,  1  Wis.  457;  CO  Am.  Dec.  393;  McDonald  v.  Wilkie, 
13  111.  i;2;  54  Am.  Dec.  423;  Batchelder  v.  Currier,  45  N.  H.  4G0;  Watson  v. 
Bfjdell,  14  Mee-s.  &  W.  57;  Grace  v.  Mitchell,  11  Am.  Rep.  013;  31  Wis.  533; 
Leacbmaii  r.  Douglierty,  81  IlL  324. 
Vol.  I.  —  1j 


§  JlW  Dl'TIES   AND  LIABILITIES  OF  OFFICERS.  226 

will  justlty  him  in  ;u-ts  done  in  obedience  thereto, 
lie  may  iirxt,  it"  ]\v  elioost^s  to  do  so,  consider  whether 
he  will  be  justilied  in  refusing  to  execute  it.  There 
are  many  ih'da  in  wiiieh  the  general  assertion  is  made, 
that  a  ministerial  ollieer  iuiist  execute  all  process  regu- 
lar on  its  t'ace,  and  ajtpcaring  to  emanate  iVoni  a  court 
of  competent  jurisdiction.  This  statement  is  by  no 
means  true.  A  writ  may  be  voidable  to  the  extent 
that  it  may  be  set  aside  on  motion,  and  yet  the  parties 
may  choose  not  to  make  such  motion;  or  if  the  motion 
be  made,  the  irregularity  may  be  such  that  the  court 
will  amend  but  not  quash  the  writ.  Whenever  the 
writ  is  amendable,  or  is  such  that,  by  the  failure  of 
the  proper  party  to  move  for  its  vacation,  it  may  be 
lawfully  executed,  a!id  may,  by  a  sale  thereunder, 
transfer  the  title  of  the  defendant,  the  sheriff  is  bound 
to  execute  it,  and  to  take  no  notice  of  the  irregularity, 
and  is  as  liable  to  the  plaintiff  for  any  neglect  or  mis- 
conduct in  its  execution  as  thouf]:h  it  were  in  all 
respects  regular.^  But  where  the  writ,  though  regu- 
lar on  its  face,  is  in  fact  void  between  the  parties,  the 
officer  is  not  compelled  to  execute  it.  "The  cases 
recognize   and   affirm   a   distinction    between   process 

'  BisscU  V.  Kip,  5  Johns.  89;  Cable  v.  Cooper,  15  Johns.  152;  Martin  v. 
Hall,  70  Ala.  421;  Milburu  v.  Sute,  11  Mo.  188;  47  Am.  Dec.  148;  Reams?-. 
MtXail,  'J  Humph.  542;  Jones  v.  Cook,  1  Cow.  309,  where  the  writ  was  tested 
out  of  term;  People  r.  Duaning,  I  Wend.  16,  where  the  writ  had  no  Beal; 
WalJen  r.  Davison,  16  Weud.  575,  the  writ  being  directed  to  wrong  officer; 
Ontario  Bank  v.  Hallett,  8  Cow.  192,  where  writ  issued  after  a  year  and  a 
day;  Parmlee  r.  Hitchcock,  12  Wend.  90,  the  writ  varying  from  the  judgment; 
Bacon  r.  Cropsey,  7  N.  Y.  195,  where  the  writ  issued  prematurely;  Samples  v. 
Walker,  9  Ala.  276,  where  wrong  return  day  was  designated;  Griswold  v. 
Chandler,  22  T-x.  637,  where  officer  attempted  to  excuse  himself  on  the  ground 
that  the  summons  was  not  properly  served;  Chase  t'.  I'lymouth,  20  Vt.  409; 
50  Am.  Dec.  52;  Stoddard  r.  Tarbell,  20  Vt.  321;  Ex  parte  Cummins,  4  Pike, 
103;  Cody  c.  Quinn,  0  Ired.  191;  44  Am.  Dec.  75;  Arnold  r.  Comnmnwealth, 
8  B.  Mou.  109;  Jordan  r.  Porterfield,  19  t^a.  1.39;  C3  Am.  Dec.  301;  Roth  v, 
Duvall,  1  Idaho,  167. 


227  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §104 

\vbicli  is  void  and  that  which  is  voidable  merely,  and 
it  is  repeatedly  stated  that  when  the  process  is  void, 
the  sheriff  is  not  bound  to  execute  it,  nor  liable  for  any 
neglect,  partial  or  total.  But  otherwise  if  the  process 
is  voidable  only;  because  if  the  defendant  in  execution 
does  not  seek  to  avoid  the  process,  and  where  the  court 
might,  if  applied  to,  allow  an  amendment,  the  sheriff 
cannot  avail  himself  of  the  defects  in  the  process."^ 

§  104.  Must  See  that  tlie  Writ  is  Enforceable  in  his 
County.  —  The  execution  may  be  regular,  and  in  all 
respects  valid  where  it  was  issued,  and  yet  not  author- 
ize its  service  by  the  officer  to  whom  it  is  delivered. 
By  the  rules  of  the  common  law,  the  writs  of  each 
court  were  only  capable  of  enforcement  within  the 
territorial  limits  of  its  jurisdiction.^  In  most  of  the 
United  States,  statutes  have  been  enacted  allowing 
courts  of  general  jurisdiction  to  issue  writs  of  execution 
to  any  county  within  the  state.  But  this  privilege  is 
not  generally  accorded  to  courts  of  limited  jurisdiction. 
It  is,  therefore,  still  necessary  for  the  officer  to  see,  in 
the  service  of  writs  from  these  latter  courts,  that  he 
does  not  act  beyond  the  limits  of  their  authority.  So 
when  intrusted  with  the  execution  of  a  writ  of  his 
own  county,  the  officer  must  remember  that  his  author- 
ity under  the  writ  is  confined  to  the  county.  He  has 
no  legal  power  to  levy  on  lands  or  property  outside  of 

'  Oinochio  v.  Orser,  1  Abb.  Pr.  434.  See;  as  to  the  right  of  ministerial 
ofEcers  to  refuse  to  serve  void  process,  and  their  exemption  from  all  liability 
for  neglect  in  such  service,  Stevenson  v.  McLean,  5  Humph.  XVI;  4.3  Am.  Dec. 
4.34;  Albee  v.  Wanl,  8  Mass.  70;  Ezra  v.  Manlove,  7  Blackf.  .380;  Jones  v. 
Cook,  1  Cow.  .300;  Earl  v.  Camp,  10  Wend.  502;  Cornell  v.  Barnes,  7  Hill,  35; 
McDulfie  V.  IJeddoe,  7  Hill,  578;  Anonymous,  1  Vent.  259;  Squibba  v.  Halo,  2 
Mod.  20;  Hill  v.  Wait,  5  Vt.  124. 

»  Chiles  V.  Uoy,  0  T.  B.  Mon.  47;  People  v.  Van  Eps,  4  Wend.  387. 


§§  1(V5.  UKi       DUTIES   AND  I.IAT5ILITTES  OF  OFFICERS.  228 

the  county.'  Tlii-s  is  inw,  allliouL^h  a  tract  of  land 
bclonjjjini,^  to  i\w  defendant  is  situated  partly  in  ono 
county  and  partly  in  another."  The  acts  of  an  oHicer 
outside  o{  his  county  or  bailiwick  seem  to  bo  regarded 
as  vt)id. 

^  105.     Satisfaction  or  Suspension  of  the  Writ.  — 

An  I'xeeution,  valitl  when  j)laeed  in  the  olliet'r's  hands, 
may  thereafter  cease  to  justify  the  otHcer  in  its  further 
enforcement.  He  is,  however,  authorized  to  proceed 
until  he  has  knowleelgo  that  it  has  been  satisfied  or 
suspendetl.^  If  a  supersedeas  issues,  the  sheriff  nv.cd  not 
question  its  jiropriety,  except  so  far  as  to  ascertain  that 
the  court  had  jurisdiction  to  grant  it.*  The  allowance 
of  a  writ  of  error  operates  as  a  supersedeas.^  After  no- 
tice of  such  allowance,  or  of  any  other  supersedeas,  an 
officer  who  proceeds  with  the  execution  of  the  writ  is  a 
trespasser.* 

§  106.  When  the  Writ  Ceases  to  be  in  Force  by 
Expiration  of  Time.  —  Conceding  that  the  execution 
placed  in  the  officer's  hands  is  valid,  and  that  it  has 
not  been  satisfied  nor  stayed  by  an  order  of  court,  the 
officer  will  next  inquire  how  long  it  will  continue  in 
force,  so  as  to  protect  him  in  its  attempted  enforcement. 
Of  course  it  is  the  duty  of  the  officer  to  proceed  to  ex- 
ecute the  writ  without  waiting  for  the  latest  period; 

>  Kinter  r.  Jenks,  43  Pa.  St.  445;  Dinkgrave  r.  Sloan,  13  La.  Ann.  393; 
Rnnk  r.  St.  John,  2l»  liarl).  r)S5. 

'  Finlt-y  r.  K   R.  Co.,  2  Rich.  5G7. 

»  Johnsfjn  V.  Fox,  51  da.  270;  Bryan  v.  Hubbg,  CON.  C.  428. 

♦  Williama  r.  Stewart,  12  Smclcii  &  M.  53.3. 

»  Perkins  r.  Woolaijton,  1  Salk.  322;  Meagher  v.  Vandyck,  2  Bos.  &  P.  370; 
Braithwaite  r.  Brown,  1  Chit.  238. 

*  BcUhaw  r.  Mamhall,  4  Barn.  &  Adol.  3.3G;  Bleasdalo  v.  Darby,  9  Price, 
606;  O'Donnell  r.  MuUin,  27  Pa.  St.  199;  77  Am.  Dec.  458;  Morrison  r.  Wright, 
7  Port.  G7;  Bryan  r.  Hulbs,  69  N.  C.  428. 


229  DUTIES  AXD  LIABUJTIES  OF  OFFICERS.  §  106 

but  it  may  happen  that  its  execution  is  hindered  by 
circumstances  not  attributable  to  any  want  of  official 
diligence.  Hence  the  frequent  necessity  of  acting  un- 
der the  writ  at  the  latest  period  authorized  by  law. 
The  first  act  to  be  done  by  the  officer  is  that  of  levying 
upon  the  property  of  the  defendant  when  the  execu- 
tion is  against  his  goods,  and  of  seizing  his  person 
when  the  writ  authorizes  such  seizure.  These  are 
initial  acts  done  for  the  purpose  of  producing  a  satis- 
tion  of  the  writ,  but  not  likely  to  accomplish  their  object 
unless  succeeded  on  one  hand  by  the  retention  and  sale 
of  the  goods,  and  on  the  other  by  the  imprisonment  of 
defendant.  By  the  levy  on  property  the  officer  has 
entered  upon  the  execution  of  his  writ,  and  has,  if  the 
levy  be  on  personalty,  acquired  a  special  property  in 
the  goods  seized.  By  the  principles  of  the  common 
law,  the  special  property  thus  acquired  was  not  di- 
vested by  the  return  of  the  writ.  The  officer  could, 
without  waiting  for  a  venditioni  exponas,  proceed  to  sell 
the  property  by  virtue  of  the  authorit}^  conferred  by  the 
original  writ.^  Wherever  some  statute  does  not  pro- 
vide otherwise,  an  officer  who  has  entered  upon  the 
execution  of  the  writ  before  the  return  day  thereof,  by 
a  seizure  of  or  levy  upon  property,  may,  after  the  re- 
turn day,  and  after  the  actual  return,  continue  to  hold 
the  property,  and  may  prosecute  such  further  proceed- 
ings as  may  be  necessary  to  convert  such  property, 
whether  it  be  real  or  personal,  into  money,  for  the  pur- 
pose of  satisfying  the  judgment.^     The  power  of  an 

»  See  §58. 

»  Phillips  r.  Dana,  3  Scam.  551 ;  State  r.  Roberts,  1  Hawks,  349;  21  Am.  Dec. 
62;  Cox  r.  Ji)iner,  4  BiIjI),  94;  Ixi-ttcr's  Carto,  4  Ilumpli.  3S3;  Logstlon  r.  Spivcy, 
M  111.  101;  Savings  Institution  v.  Cliinn,  7  HuhIi,  .^.10;  Hoywood  v.  HilJruth,  9 
Ma«.  .39:5;  Smith  r.  Spt-nccr,  3  Irul.  2:)0;  Blair  r.  CVimpton.  33  Mich.  414; 
Barrett  v.  McKeozie,  24  Minn.  20;  Kane  v.  McCown,  55  Mo.  181;  Ilcmingtou 


§  U^  DUTIES   AND   LIAIUI.ITIKS   OF   OFFICERS.  '230 

oftici^r  to  mako  a  salo  aftor  tlu'  return  day  of  his  writ 
was  justitiril  on  tlir  orouiul  tliat  by  tlio  levy  of  the  writ 
he  aeijuiicd  a  spciial  propeil  y  and  rii^iit  <>f  j)ossossion 
in  the  ehattels  seized,  and  tliat,  in  this  special  pr<)i)ert)' 
was  iiieluded  the  rii^ht  inilependiMitly  of  the  eontinuing 
force  of  the  writ  to  sell  the  goods  in  furtheranee  of  the 
oljeet  for  which  they  were  seized,  to  wit,  the  satisflic- 
tion  of  tlie  judgment.  This  justification  was  sufficient 
at  the  conunon  law,  under  which  nothing  but  chattels 
were  subject  to  sale  under  execution.  Very  generally 
in  America,  real  property  may  also  be  sold  under 
execution.  Notice  of  the  sale  is  ordinarily  required  to 
be  given  for  a  considerable  period  of  time,  and  unless 
the  officer  may  make  his  sale  after  the  return  da}', 
many  levies  must  inevitably  remain^ unproductive.  It 
has  nevertheless  been  lield  in  several  of  the  states 
that  because  the  officer  acquired  no  special  property 
nor  right  of  possession  in  lands  levied  upon,  he  was 
without  power  to  sell  them  after  the  return  day  of  the 
writ.^  To  so  hold  was  practically  to  make  the  writ  in- 
operative against  real  estate  fgr  weeks  prior  to  the  re- 
turn day;  for  of  what  avail  is  a  levy  when  no  sufficient 
notice  can  be  given  of  a  sale?  —  and  yet  it  is  conceded 
that  a  levy  may  be  made  upon  property,  real  as  well  as 
personal,  up  to  the  moment  when  the  writ  is  required 
to  be  returned. 

V.  Linthicum,  14  Pet.  84;  Wheaton  v.  Sexton,  4  Wheat.  503;  Barnard  v. 
Stevens,  2  Aiken,  429;  IG  Am.  Dec.  733;  Doc  d.  Lander  v.  Stone,  1  ilawks, 
329;  SUwart  t-.  Severance,  43  Mo.  322;  97  Am.  Due.  392;  Tayloo  v.  Giiskins,  1 
Dev.  295;  Wri^'ht  r.  IIowcU,  .35  If)wa,  2SS;  Gaither  r.  Martin,  3  Md.  140; 
Pettingill  r.  Mosa,  3  Minn.  223;  74  Am.  Dec.  747;  Wood  v.  Colvin,  5  Hill, 
230;  MoreUud  r.  Bowling,  3  Gill,  500;  Devoo  r.  Elliott,  2  Caines,  243;  Bank 
of  MiiMiouri  r.  Bray,  37  Mo.  194;  see  ant^;  §  58. 

'  Overton  r.  Perkins,  10  Ycrg.  328;  liogers  ».  Cawood,  1  Swan,  142;  55  Am. 
Dec.  729;  Bonlen  r.  McKinnie,  4  Hawks,  279;  SeawoU  r.  Bank  of  Capo  Fear, 
3  Dev.  279;  22  Am.  Dec.  722;  Morgnn  v.  RamBcy,  15  Ala,.  190;  Smitli  v.  Mundy, 
18  Ala.  182;  52  Am.  Dec.  221;  Sheppard  r.  Kliea,  49  Ala.  125;  aeo  ante,  §  58. 


231  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §106 

We  apprehend  that  the  reason  given  for  the  rule  at 
common  law  was  not  the  true  one, — that  the  special 
property  and  the  right  of  possession  were  not  the  basis 
of  the  officer's  authority,  but  mere  incidents  of  it.     The 
authority  was  conferred  by  the  writ,  which  commanded 
him  to  make  the  money  of  the  goods  and  chattels  of 
the  defendant.     This  authority  could  not  be  pursued 
except  by  seizing  the  property  and  retaining  it  till  sold, 
and  the  possession  of  the  property  until  a  sale  could 
be  made  could  not  be  secured  to  the  officer  except  by 
conceding  to  him  a  special  property  and  right  of  pos- 
session sufficient  to  enable  him  to  vindicate  his  rights 
against  all  attempted  invasions  thereof.     When  real 
property  was  authorized  to  be  levied  on  and  sold,  it 
was  not  essential  to  the  effectual  exercise  of  the  power 
that  the  officer  should  seize  the  property,  but  it  was 
essential   that  by  some  act,  equivalent  to  a  levy,  he 
should  consecrate  the  realty  to  the  satisfaction  of  his 
writ,  so  that  no  act  of  the  defendant,  nor  of  any  onp 
claiming  under  him,  could  deprive  the  plaintiff  of  the 
right,  in   the  mode  provided  by  law,  of  appropriating 
such  realty  to  the  extinction  of  the  judgment  debt.     It 
was  also  essential  that  the  lien  or  right  created  by  the 
levj^  should  not  become  abortive  from  the  mere  inabil- 
ity of  the  officer  to  make  a  sale  in  consonance  with  the 
requirements  of  the  statute  prior  to  the  return  day  of 
the  writ.     Hence  the  better  opinion  is,  that  the  levy 
upon  real  property  before  the  return  day  vests  in  the 
officer  a  power  of  sale  without  which   the  levy  would 
be  an  idle  act,  and  that  such  |)owcr  may  be  pursued 
after  such  return  day  as  effectively  as  before.^     A  few 

'  See  3  Minn.  22.'};  5  Hill,  2:10;  4  JJil.l.,  •)4;  'A  Soain.  f).-)!;  14  P.t.  84;  4 
Wheat.  50.3;  .37  Mo.  194;  and  'A')  Iowa,  2.S.S,  cited  almve.  ALho  Moonoy  v. 
Muw.  22  Ir.w.i.  .''kSO;  R.jddick  v.  Cl.m.l,  2  Ciilm.  (i70;  Ikllin^all  r.  Duncan,  3 
Gilin.  477;  TillotMon  v.  Doo,  5  Blackf.  590;  Butterlicld  v.  WalHli,  21  L-wa,  97; 


§  \06  DUTIES  AND  UABILITTES  OF  OFFICERS.  232 

of  the  states  liavo  thoii<j;-lit  proper  to  limit  tliis  power 
by  statutes  torbicUlinj]^  its  exercise  after  the  return  day. 
In  tluse  stiites  a  sale  ukkK-  in  deruince  oC  sueli  statutes 
is  undeniably  void.^  The  rule  allowing  the  ofBcer  to 
make  a  sale  after  the  return  day  of  the  writ,  <if  prop- 
ert}'  then  levied  upon  by  him,  is  justified  on  the  ground 
tliat  title,  when  transferred  by  a  sherilf's  sal«,  relates 
baek  to  the  seizure  or  levy  of  the  property  sold;  and 
on  tlie  further  o-round  that  otherwise  the  previous 
levy,  whieh  was  authorized  when  made,  might  become 
a  vain  and  purposeless  act.  But,  except  for  the  pur- 
pose of  justifying  the  detention  and  sale  of  the  property 
previously  levied  upon,  an  execution  after  the  return 
day  thereof  is  functus  officio}  The  officer  attempting 
to  further  execute  it  is  entirely  without  justification, 
and  is  liable  fi^r  his  acts  precisely  as  he  would  be  if  he 
had  no  writ  in  his  possession.  A  purchaser  at  an  exe- 
cution sale,  where  the  levy  and  sale  were  made  after 
the  return  day  of  the  writ,  acquires  no  title  whatever.^ 
An  arrest  under  a  ca.  sa.  after  the  return  day  is  a  tres- 
pass,* and  so  is  a  levy  under  n  fieri  facias^     An  officer 

89  Am.  Dec.  557;  Stein  v.  Chambless,  18  Iowa,  474;  87  Am.  Dec.  411;  Irwin 
V.  Picket,  3  Bibb,  .343;  Lowry  v.  Reed,  89  Ind.  442;  Rose  v.  Ingram,  98  Ind. 
27G;  Knox  r.  Randall,  24  Minn.  479;  Johnson  v.  Bemis,  7  Neb.  224. 

*■  Lchr  r.  Rogers,  3  Smedes  &  M.  4G8;  Kane  v.  Preston,  24  Miss.  133;  Dale 
V.  Metcalf,  9  Pa.  St.  108;  Cash  v.  Tozer,  1  Watts  &  S.  519. 

'  Cook  r.  Wood,  1  Harr.  (N.  J.)  254;  Hathaway  v.  Howell,  9  Alb.  L.  J. 
201;  54  N.  Y.  97;  Finn  v.  Commonwealth,  G  Pa.  St.  400;  Lofland  v.  Jeffer- 
son, 4  Harr.  (Del.)  .303;  Castleman  v.  Griffith,  Ky.  Pr.  Decis.  348;  Camahan 
V.  People,  2  III.  App.  030. 

*  bank  of  Missouri  v.  Bray,  37  Mo.  194;  Jefferson  v.  Curry,  71  Mo.  85; 
Wack  r.  Stevenson,  54  Mo.  481;  McDonald  v.  Gronefeld,  45  Mo.  28;  Kemblo 
V.  Harria,  36  N.  J.  L.  520;  McElevee  r.  Sutton,  2  Bail.  301;  Love  v.  Gates,  2 
Ired.  14;  (Jaines  v.  Clark,  1  Bibb,  600;  Lehr  v.  Doe,  3  Smedes  &  M.  408;  Ross 
r.  McEnrtan,  1  Brev.  507;  Vail  v.  Lewis,  4  Jolms.  450;  4  Am.  Dec.  .300;  Col- 
lins r.  Waggoner,  Breese,  180;  Rangeky  r.  Goodwin,  18  N.  11.  217;  Frellaen 
r.  Anderson,  14  La.  Ann.  05;  West  r.  Shockley,  4  Uarr.  (Del.)  287. 

♦  Stoyel  r.  Lawrence,  3  1  >ay,  1 . 

•  Vail  V.  Lewia,  4  Johns.  450;  4  Am.  Dec.  300. 


233  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  lOG 

receiving  money  after  the  return  day  does  not  act  in 
his  official  capacity,  but  merely  as  the  agent  of  the 
defendant.  Such  payment  does  not  make  the  officer's 
sureties  responsible,  nor  does  it  satisfy  the  judgment 
unless  accepted  by  plaintiff.^  An  execution  continues 
in  force  to  and  including  the  return  day  thereof;  and 
a  valid  levy  may  be  made  on  the  return  day  as  well  as 
on  any  other.^  When,  under  the  law,  the  writ  is  re- 
turnable to  court,  a  question  has  arisen  whether  it 
continues  in  force  after  the  adjournment  of  the  court 
on  the  return  day.  In  England,^  it  was  held  tliat  at 
the  adjournment  of  the  court  the  writ  hecsune  fanciiis 
officio;  and  in  America  some  decisions  have  been  made 
on  authority  of  this  English  case,  and  therefore  in 
harmony  with  it ;  ^  but  the  English  case  was  long  since 
overruled  in  that  country,  and  the  law  declared  to  be 
that  the  writ  may  be  executed  at  any  time  during  the 
return  day.^  A  levari  facias  de  bonis  ecclesiasticis  differs 
from  other  writs  of  execution  in  the  time  it  may  be 
enforced.  It  is  a  continuing  writ.  A  levy  may  be 
made  under  it  from  time  to  time  after  it  is  returnable, 
until  satisfaction  is  produced.  A  rule  may  be  had 
against  tJie  bishop  from  time  to  time,  to  know  what  he 
has  levied.  If,  however,  the  writ  is  actually  returned, 
the  bishop's  authorit}^  to  act  is  thereby  terminated.^ 

'  Farmers'  Bank  v.  R,oiJ,  3  Ala.  299;  Rudd  v.  Johnson,  5  Litt.  19;  Edward 
V.  Ingraham,  31  Miss.  272;  Haralson  r.  Ingraliam,  10  Sinedes  &  M.  581;  Barton 
r.  Lockhart,  Stew.  &  P.  109;  Bobo  ?\  Tlionipson,  3  Stew.  &  P.  385;  Harris  w. 
Ellid,  30  lex.  4;  9t  Am.  Dec.  290;  Planters' Bank  v.  Scott,  5  How.  (Miss.)  24G; 
Crand.staffr.  Rid^^'cley,  .30  fJratt.  1. 

•<  WolLy  V.  Mosely,  fro.  Eliz.  701 ;  Harvey  r.  Broad,  Salk.  626;  Gaines  v. 
Clark,  1  Bibl.,  (109;  Valentine  r.  Coolcy,  1  Humph.  38. 

»  Perkins  r.  Woolaston.  U  Mod.  l.'iO;  Salk.  .321. 

♦  Prc-Hcott  >:  Wri-ht,  0  Mfiss.  20;  Blaisdell  v.  Sheafe,  5  N.  H.  201. 

'  Maud  r.  Barnard,  2  Burr.  812. 

"  Marsh  v.  Fawcctt,  2  H.  Black.  582;  3  Wma.  Abr.  468. 


§  107  DUTIICS   AND   LIABILITIES!  OF  OFFICERS.  2U 

^  107.  Diligence  with  Which  the  Officer  should  Pro- 
ceed. —  1  IiuiuLj  satislicil  hiinscir  that  it  is  his  duty  to 
oxoouto  thr  writ,  tlio  otlicor  may  lu'xt  iiujuiro  when 
aiul  liow  lio  imist  proceed.  The  writ  will  expire  on  its 
return  da\-,  anil  ought  certainly  to  be  executed  by  that 
time,  if  possible.  But  the  olHcer  has  no  right  to  delay 
its  execution  tor  any  period  of  time.  II'  the  plaintilF 
jK)ints  out  property  belonging  to  the  defendant,  and 
requests  its  seizure,  the  sheriff  should  comply,  though 
the  writ  has  just  come  to  his  hands.  If  he  refuses  to 
levy,  an  action  may  be  sustained  against  him  tor  such 
refusiil,  without  waiting  for  the  return  of  the  writ,  pro- 
vided that  the  plaintiff  can  show  that  he  has  been  in- 
jured by  the  delay.^  The  degree  of  dihgence  which  an 
officer  mu-t  display  in  the  execution  of  a  writ  cannot 
be  stated  with  desirable  precision:  1.  Because  the 
courts  arc  not  exactly  agreed  in  the  rules  which  they 
have  announced  on  the  subject;  and  2.  Because  of 
the  inherent  and  unavoidable  difliculty  of  finding  and 
expressing  any  general  principle  which  is  fit  to  govern 
a  class  of  cases,  each  member  of  which  is  necessarily 
affected  by  ))eculiar  circumstances  tending  to  distin- 
guish it  from  every  other  member.'^  In  Lindsay's 
Executors  v.  Armfield,^  it  is  said  that  "the  law  de- 
clares it  to  be  the  duty  of  the  sheriff  to  execute  all 
process  which  comes  to  his  hands  with  the  utmost  expe- 
dition, or  as  .soon  after  it  comes  to  his  hands  as  the 
nature  of  the  case  will  admit."  In  another  case  the 
court  said:  "  A  .sheriff  is  bound  to  use  all  reasonable  en- 
deavors to  execute  process";  and  further,  that  he  should 

•  Shannon  r.  Commonwealth,  8  Serg.  &.  11.  444;  Farquhar  r.  Dallas,  20  Tex. 
200. 

»  Wliitacll  V.  Slater,  23  Ala.  026. 
»  3  Uawka,  553;  14  Am.  Dec.  G03. 


235  DUTIES  AXD  LIABILITIES  OF  OFFICERS.  §  107 

make  all  needful  inquiries,  and  not  rely  "on  vague  in- 
formation obtained  from  casual  inquiries."^  While  it 
is  doubtless  prudent  for  the  plaintiff  to  point  out  to  the 
officer  property  subject  to  levy,  his  not  doing  so  does 
not  exonerate  the  officer  from  making  a  levy  if  practi- 
cable. It  is  his  duty  to  make  diliG:ence  search  and 
inquiry  for  property,  and  failing  to  do  so,  he  is  answer- 
able for  any  loss  which  may  be  incurred.^  Nor  must 
he  content  himself  with  mere  formal  inquiry.  If  sued 
for  his  failure  to  realize  the  judgment  debt,  he  cannot 
successful!}^  defend  by  proving  the  existence  of  a  gen- 
eral report  that  the  defendant  was  insolvent,^  nor  by 
showing  that  he  was  informed  by  the  debtor  and  his  wife 
that  the  property  in  their  possession  belonged  to  her.* 
So  it  was  held  that  a  marshal  was  bound  to  serve  a  sub- 
poena in  chancery  "as  soon  as  he  reasonably  could." ^ 
"The  sheriff's  liability  rests  on  his  breach  of  official 
duty.  As  he  is  bound  to  perform  his  duty,  so  he  is  re- 
sponsible to  every  one  who  may  be  injured  by  his  failure 
to  discharge  it.  In  respect  to  the  execution  of  process, 
these  official  duties  are  well  defined  by  law.  The  law 
is  reasonable  in  this,  as  in  all  other  things.  It  holds 
public  officers  to  a  strict  performance  of  their  respect- 
ive duties.  It  tolerates  no  wanton  disrc£!;ard  of  these 
duties.  It  sanctions  no  negligence;  but  it  requires  no 
impossibilities,  and  imposes  no  unconscionable  exac- 
tions. When  process  of  attachment  or  execution  comes 
to  the  hands  of  the  sheriff,  he  nmst  obey  the  exigency 

»  llinman  r.  Bonlcii,  10  Wend.  3G8;  25  Am.  Dec.  5G8. 

»  (ireen  r.  Lowell,  'A  Greuiil.  373;  Hargravo  v.  Pcnrod,  Brcesc,  401;  Albany 
City  B;irik  r.  Dorr,  Walk.  Cli.  318. 

*  I'arktt  r.  Alexandvr,  7  Ired.  412. 

*  Roljcrtaon  r.  Ikavera,  3  Port.  38.). 

*  Kennedy  r.  IJrent,  G  Cranch,  187.     A  delay  of  eight  days  baa  boon  deter- 
mined to  bo  negligent,     llcarn  v.  Parker,  7  Jouea,  1 JO. 


8107  DUTIES   AND   LIABILITIES  OF  OFFICERS.  236 

of  the  writ.  He  must  in  sm-li  ca^os  oxocuti^  tlic  writ 
with  all  ivasonaMo  (vlcrity.  WluMu>vt.r  lie  can  make 
the  nunicy  on  oxooutii)n,  or  secure  the  debt  on  attaeh- 
iiiont,  ho  must  do  it.  l>ut  he  is  not  htld  to  the  duty 
of  sUirting,  on  tl»e  instant  after  receiving  a  writ,  to 
execute  it,  without  legard  to  anything  else  than  its 
instant  execution.  Ucasonahle  dihgence  is  all  that  is 
requin-il  of  him  in  such  instances.  But  this  reasonable 
diligence  depends  upon  the  particular  facts  in  connec- 
tion with  the  duty.  Il',  for  example,  a  sheriif  has 
execution  against  A,  and  he  has  no  special  instructions 
to  execute  it  at  once,  and  there  is  no  apparent  necessity 
for  it^  immediate  execution,  it  would  not  be  contended 
that  he  was  under  the  same  obligations  to  execute  it 
instantaneously  as  if  he  were  so  instructed,  and  there 
w^ere  circumstances  of  urgency."^  In  order  to  sustain 
an  action  against  an  oflicer  for  not  leNying  a  writ,  "it 
is  nece-sary  for  the  plaintiff  to  establish  by  proof  that 
an  execution  in  his  favor  was  received  b}''  the  sheriff  in 
time  to  niake  the  money;  and  that  while  in  his  hands 
he  was  required  to  make  a  levy  by  virtue  of  it,  at  a 
time  when  it  was  in  his  power  to  do  so;  and  further, 
that  he  fiiiled  to  make  such  levy."" 

The  mere  failure  to  make  a  levy,  though  proj)erty 
could  have  been  found  subject  to  such  levy,  will  not 
invariably  make  the  officer  liable.  The  court  will  con- 
sider what  were  his  other  duties  at  the  time,  for  his 
diligence  nmst  be  viewed  in  the  light  of  all  attendant 
circumstances.  If  he  has  a  large  number  of  prior  writs 
in  his  hands,  and  is  also  pressed  by  numerous  other 

'  Whitmy  r.  EuttcrfieM,  1.3  Cal.  3:}S;  73  Am.  Dec.  .'JS4.  See  al»o  Jamier  v. 
Vandevcr,  3  Harr.  (Del.)  20;  Pvoo  r.  Gemmill,  1  HoUHt.  9. 

*  Lyen<iecker  r.  Martiu,  38  Tex.  289.  Failing  to  levy  an  execution,  wbca 
in  hli  power  to  do  no,  makes  the  oflicer  responsible.  O'Bannon  r.  Saunders,  24 
Gratt  13d. 


237  DUTIES  AND  LIABILITIES  OP  OFFICERS.  §107 

official  duties,  a  delay  of  fourteen  daj's  may  not  estab- 
lish want  of  diligence/  In  some  of  the  recent  cases  it 
has  been  held  proper  to  instruct  the  jury  that  the  sheriff 
was  exonerated  if  he  exercised  "skill  and  diliofence  such 
as  a  reasonable  man  would  exercise  in  the  performance 
of  like  duties  under  the  same  circumstances."^  This 
subject  received  very  careful  attention  in  the  supreme 
court  of  Wisconsin  in  considering  two  appeals  taken  in 
the  case  of  Elmore  v.  Hill.^  The  general  rule  was  there 
formulated  as  follows:  "  The  result  of  the  adjudications 
on  the  subject  seems  to  be,  that  on  receipt  of  the  exe- 
cution, in  the  absence  of  specific  instructions,  the  officer 
must  proceed  with  reasonable  celerity  to  seize  the  prop- 
erty of  the  debtor,  if  he  knows,  or  by  reasonable  effort 
can  ascertain,  that  such  debtor  has  property-  in  liis  bail- 
iwick liable  to  seizure  or  execution.  The  officer  must 
do  this  as  soon  after  the  process  comes  to  his  hands  as 
the  nature  of  the  case  will  admit.  If  he  fails  to  exe- 
cute tlie  process  within  an  apparently  reasonable  time, 
the  burden  is  on  him  to  show,  by  averment  and  proof, 
that  his  delay  was  not  in  fact  unreasonable.  Failing: 
this,  he  must  respond  in  damages  to  the  party  injured 
by  his  negligence."  In  this  case  it  appeared  that  in 
the  afternoon  of  April  25,  187G,  the  execution  was 
delivered  t<>  tlic  sheriff.  It  was  ao;ainst  a  thrashing:- 
machine  company  then  doing  business  within  a  mile 
and  a  half  (jf  the  sheriff's  office.  In  the  evening  of  the 
same  day  tlie  under-slieriff  called  on  the  secretary  of 
the  company,  advised  him  of  the  execution,  and  asked 
him  whether  he  was  ready  to  satisfy  it.     The  secretary 

»  State  V.  Blaiicli,  70  Ind.  204. 

»  CroH)>y  t'.  Ilungcrford,  59  low.i.  712;  12  N.  W.  Rep.  582;  8tat«  v.  Leland, 
82  Mo.  200. 

»  40  Wia.  018  aal  51  Wis.  305;  1  N.  W.  licp.  236  and  8  N.  W.  Rep.  240. 


1108  DUTIES  AND  LIABILITIES  OF  OFFICERS.  238 

replied  that  the  hoiinl  wouKl  have  a  inocting  the  next 
morniiiLC  and  luako  soiiu^  arraiij^cMiioiit  alxnit  paying"  the 
debt.  Nothiiiij^  riirtlur  was  done  by  the  sheriff.  On 
the  l!lHh  o(  the  same  month  the  eonipany  ma(U'  an  as- 
siijfnment.  It  beinir  admitted  that  the  defendant  in 
exeeiitien  had  property  known  to  the  sheriff  npon  \vhieh 
a  levy  could  liavo  iicm  maile,  the  court  liad  no  hesita- 
tion in  tloclarinjjj  as  a  matter  of  law  that  tliesc  facts 
constituted  want  of  diligence  on  the  part  of  tliat  officer, 
and  rendcnnl  him  answerable  to  the  plaintiff,  even  as- 
suming that  no  directions  were  given  to  proceed  at 
once.  To  the  sheriff's  plea  that  he  was  required  to  be 
in  attendance  upon  the  circuit  court  at  that  time,  the 
court  responded  that  he  was  authorized  by  law  to  ap- 
point as  many  deputies  as  he  saw  fit,  that  the  object  of 
this  authorization  was  to  secure  the  speedy  service  of 
process;  and  that  if  his  constant  personal  attendance 
upon  the  court  was  really  necessary,  then  he  ouglit  to 
have  sent  a  deputy  to  levy  the  execution. 

§  108.  Wlio  may  Control  the  "Writ.  —  Tlie  inquiry 
how  the  writ  is  to  be  executed  cannot  be  answered  in 
detail  in  this  chapter.  The  best  general  answer  to 
this  inquiry  is  that  given  by  Bacon  in  his  Abridgment, 
namely,  "that  there  cannot  be  a  surer  rule  to  go  by 
than  a  strict  observance  of  what  is  enjoined  hy  the 
writ."  ^  The  writ  directs  the  money  to  be  made  out 
of  the  personal  property  of  the  defendant.  The  first 
inquiry,  therefore,  will  be  with  a  view  of  ascertaining 
whether  the  defendant  has  any  such  property  subject 
to  execution;  if  so,  the  next  inquiry  is,  How  can  a 
valid  levy  be  made  on  such  pro[)en:y?     So  if  the  de- 

'  Bac.  Abr.,  tit.  Sheriff,  N,  I. 


239  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  108 

fendant  ha^  no  personal  property  subject  to  execution, 
the  officer  should  inquire  for  real  estate,  and  if  any  be 
found,  should  ascertain  whether  it  be  subject  to  exe- 
cution, and  if  so,  should  proceed  to  levy  thereon.     And 
whether  the  levy  be  upon  real  or  personal  estate,  many 
inquiries  must  be  made  to  ascertain  how  the  levy  is  to 
be  made  productive  of  satisfaction.     The  various  steps 
in  the  enforcement  of  the  writ,  and  the  inquiries  neces- 
sarily precedin,!^  these  steps,  will  be  considered  in  sub- 
sequent chapters.     One  inquiry  will  be  ansv^ered  here, 
—  who  is  entitled   to  control  the   writ.     The   officer 
should  always  bear  in  mind  that  the  v/rit  is  intended 
for  the  benefit  of  the  plaintiff,  who  alone  is  interested 
in  its  enforcement.^     The  interests  and  wishes  of  the 
plaintiff  should  at  all  times  be  respected.     He  has  no 
right  to  insist  upon  a  fraudulent  nor  oppressive  use  of 
the  writ;'^  nor  in  any  respect  to  compel  the  officer  to 
exercise  a  severity  which  would  seem  to  be  actuated 
by  malice   toward  the  defendant  as  nmch  as  by  the 
desire  to  obtain  satisfaction  of  his  judgment.     But  all 
directions  of  the  plaintiff  not  savoring  of  fraud,  nor  un- 
due rigor  and  oppression,  must  be  obeyed,  or  the  officer 
will  be  held  liable  for  injurious  consequences  flowin<»' 
from  his  disobedience.^     The  plaintiff  may  direct  that 
the  property  of  one  of  the  defendants  be  levied  upon, 
instead  of  levying  on  the  property  of  all  the  defend- 
ants;* or  lie  may  authorize  the  officer  to  take  a  course 

>  Red.lick  V.  Clou.l'a  Adrn'rs,  7  111.  G70;  Morgan  v.  People,  69  111.  68. 

'■>  McDoiiaM  %:  Neilson,  2  CV.w.  1.39;  14  Am.  Dec.  4:51. 

"Tucker  V.  Bradley,  1.5  Conn.  40;  Rogcr.s  v.  McDcanniM,  7  N.  II.  60C; 
Richardson  v.  Bartley,  2  B.  Mon.  .328;  Patton  r.  Haniner,  2S  Ala.  018;  Poston 
V.  Southern,  7  B.  Mon.  2S9;  Walworth  r.  Read.sboro,  24  Vt.  252;  Shyrock  r. 
JoncH,  22  Pa.  St.  30.3;  Islur  v.  Colgrove,  75  N.  C.  .3.34;  Stato  r.  Pilsbury,  .35 
La.  Ann.  408. 

♦  E^K-t  V.  Wagner,  30  N.  Y.  9;  80  Am.  Dec.  348;  Godfrey  v.  Gibbona.  22 
WonJ.  609. 


§  lOS  PITIES  AND  LIABILITIES  OF  OFFICERS.  240 

outsitlo  tl\o  ordinary  metliod  orcolK-ction,  by  receiving 
notes,  in  iniynient  or  jj^ivinjjj  credit  at  the  saK' ; '  or  lie 
may  order  tlie  otlicer  tt)  suspend  the  writ,  either  teni- 
jxirarily  or  permanently;'"  and  tlie  hitter  is  ]\iih\c  for 
makin'j:  a  saK^  after  the  phiintitf  has  directed  liim  not 
to  do  so.'  The  j»laintilF's  attorney  has,  hy  virtue  of  his 
general  employment  in  the  case,  power  to  direct  and 
control  the  execution,*  tliough  he  cannot  satisfy  the 
writ  except  upon  pa3'mcnt  to  him  of  the  full  amomit 
thereof  in  moncy,^  unless  the  plaintiff  has  given  him 
special  authority  to  compromise  the  debt  or  accept 
s:itisfaction  in  somethins]f  not  a  leiial  tender.  The  bur- 
den  of  proving  such  special  autliority  is  upon  the  party 
claiming  under  it;  for  it  will  never  be  presumed.®  In 
England  it  seems  that  the  retainer  of  the  attorney 
ceases  at  judgment;"  but  that  if  an  attorney  is  re- 
tained to  conduct  proceedings  under  execution,  he  has 
authority  to  make  a  compromise.^  The  autliority  of 
the  plaintiff's  attorney  may  be  revoked  at  any  time; 
and  alttr  knowledge  of  such  revocation,  the  officer  is 

*  Armstrong  r.  Garrow,  G  Cow.  4G5;  Gorham  v.  Gale,  G  Cow.  4G7,  note  a. 
'  Jacksoa  v.  Anderson,  4  Wcml.  474. 

'  Morgan  t>.  People,  50  111.  CO. 

*  Gorham  r.  Gale,  7  Cow.  739;  17  Am.  Dec.  549;  Walters  v.  Sykcs,  22 
Wend.  508;  State  r.  Boyd,  G3  Ind.  428. 

*  Freeman  on  Judgments,  sec.  4G3;  Wright  v.  Daily,  20  Tex.  730;  Garth- 
waitc  r.  Wontz,  19  La.  Ann.  196;  Lewis  ?'.  Gamagc,  1  Pick.  347;  Smock  v. 
Dadt.',  5  Rand.  039;  10  Am.  Dec.  780;  McCarver  r.  Xealey,  1  Iowa,  300;  Lewis 
r.  Woodruff,  15  How.  Pr.  539;  Benedict  v.  Smith,  10  Paine,  120;  Beers  v. 
Henilrickson,  45  X.  Y.  005;  Jackson  v.  Bartlett,  8  Johns.  .301;  Trundmll 
r.  Nicholson,  27  111.  149;  Wilkinson  v.  IloUoway,  7  Leigh,  277;  Wakeinan  v. 
Jones,  1  Cart.  517;  Cliapman  v.  Cowles,  41  Ala.  103;  91  Am.  Deo.  508;  Jones 
r.  Ransom,  3  In'l.  .')27;  Ahho  v.  Rood,  G  McLean,  107;  Jewett  v.  Wadlcigh,  32 
Me.  110;  Vail  r.  Conant,  15  Vt.  314. 

*  Portis  r.  Ennia,  27  Tex.  574. 

">  Loveg.XHl  r.  White,  L.  R.  G  C.  P.  440;  Butler  v.  Knight,  L.  R.  2  Ex.  109; 
3G  L.  J.  Ex.  80;  15  Week.  lUi..  407;  15  L.  T.,  N.  S.,  021. 

*  Butler  r.  Kni-ht,  L.  R.  2  Ex.  109;  31>  L.  J.  Ex.  80;  15  Week.  Rep.  407; 
15  L.  T.,  N.  .S.,  C21. 


241  DUTIES  AND   LIABILITIES  OF  OFFICERS.  §  108 

not  justified  in  pursuing  the  instructions  of  the  attor- 
ney. An  assignment  of  the  judgment  also  operates 
as  a  revocation  of  the  attorney's  authority.  If  the 
officer  has  notice  of  such  assignment,  and  that  the  as- 
signee has  employed  another  attorney,  he  must  recog- 
nize the  changed  condition  of  affairs,  and  obey  the 
instructions  of  the  latter.^ 

^  Robinson  v.  Brennan,  90  N.  Y.  208. 
Vol.  I. -16 


PERSONAL  PROPEliTY   SUBJECT  TO  EXECUTION.         212 


c'iiAiai":u  X. 

rKKSONAL  rUHrKllTY   SUBJIAT  TO  EXECUTION   BY  LE\'Y  AND 

SALE. 

§  100.     lutrfxluction  —  ClaMification  of  subject. 
§  UH)  a.     L;\w  <>f  the  oi/im  controls. 

KIN  OS   OF   PER-SONAI,    rnoPERTY   Sl'UJKCT   TO    EXKCl'TION. 

§  110.  Crencrally  all  tangible  property. 

§  111.  Money. 

§  112.  Cbosos  in  action. 

§  113.  Cr(»ps  not  bar\'estcil,  and  other  prodncta  of  the  eoil. 

§  114.  Fixtures. 

OF  THE    INTERESTS    IN    PEIWON-^LTY   SriUECT   TO    EXECUTION. 

§  1 1 .'.  Only  the  real  aa  contradiatinguidbed  from  tbc  apparent  interests  of  the 

defendant. 

§  1 1().  Equitable  estates. 

§  117.  Estates  of  mort;;agors. 

§  118.  Estate.'*  of  tnortgagees. 

§  119.  Leasehold  interests  in  real  and  personal  property. 

§  120.  Interests  of  pawuors  and  of  pawuced. 

§  121.  Interests  of  bailees. 

§  122.  Estates  in  remainder. 

§  123.  Inchoate  int^'rests. 

§  12-t.  Property  held  under  eomlitional  sale. 

§  125.  Interests  of  co-tenant.*  and  partners. 
§  125  a.     Property  subject  to  execution  in  equity. 

I»EKENDANTS   WHOSE   PROPERTY   CANNOT   BE   SEIZED. 

§  120.     Counties  and  municipalities. 

§  120  a.     Property  of  qwi-ni  public  corporations. 

§  127.     Married  women  under  judgments  against  their  husljands. 

8  128.     Married  women  under  judgments  against  themselves. 

PROPEKTV    NOT   SUBJECT   TO    EXECUTION,    BECACSE    IN    CUSTODY   OF  THE    LAW. 

§  129.  ProiHirty  in  the  hands  of  receivers  and  assignees. 

8  130.  Money  in  the  hands  of  Khcrifls,  constables,  clerks,  and  justices. 

f  1.30  a.     Projicrty  taken  from  prisoner  on  his  arrest. 

I  131.  Pro|K:rty  in  the  hands  of  administrators,  executors,  and  guardians. 

I  132.  Moa<;^'  in  the  hands  of  federal,  state,  and  county  officers. 

§  133.  Money  in  the  hands  of  officers  of  municipalities. 

§  IM.  Money  in  the  hands  of  attorneys. 

I  135.  Goods  levied  upon. 


243  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  109 

PEOPEETY  CONVEYED  OR  MORTGAGED  TO  HINDER,  DELAY,  OR  DEFRArD 
CREDITORS. 

§  136.     General  rule. 

§  137.     Creditors  who  may  avoid  a  fraudulent  transfer. 

§  137  a.     Creditors,  who  are,  within  meaning  of  law  against  fraudulent  trans- 

fers. 
§  138.     Property  which  may  be  taken  from  fraudulent  grantee. 
§  139.     Origin  of  the  law  against  fraudulent  tranfers. 

§  140.     Grantees  whose  interests  are  not  prejudiced  by  showing  fraud  in  trans- 
fer. 
§  141.     Good  faith  of  the  holder  of  the  property. 
§  142.     Voluntary  conveyances. 
§  143.     Conveyances  to  the  use  of  grantor. 
§  144.     Conditional  conveyances. 
§  145.     Mortgages. 
§  14G.     Assignments  for  benefit  of  creditors. 

ABSENCE   OF   CHANGE   OF  POSSESSION   AS   EVIDENCE    OP   FRAUD  IN   TRANSFER. 
§  147.     Rule  of  the  English  cases. 
§  148.     Cases  in  the  majority  of  the  United  States. 

§  149.^    States  where  continuance  of  grantor  in  possession  is  per  se  fraudulent. 
§  \o6.     Recapitulation  of  authorities. 

§  151.     Absolute  transfers  not  requiring  change  of  possession. 
§  152.     Transfers  to  secure  payment  of  indebtedness. 
§  152  a.     In  conditional  sales. 
§  153.     Character  and  situation  of  property  as  dispensing  with  necessity  for 

change  of  possession. 
§  154.     When  the  cliange  of  possession  must  be  made. 
§  155.     Wliat  is  a  sufficient  change. 
§  156.     How  long  the  change  must  continue. 
§  157.     Property  sold,  but  never  delivered. 
§  158.     Goods  purchased  through  fraud. 

§  109.    Introduction  —  Classification  of  Subject 

In  following  the  instructions  contained  in  the  writ, 
the  officer  will  first  seek  to  discover  personal  prop- 
erty' belonging  to  the  defendant  or  defendants,  and 

'  Capo  Sable  Company's  Case,  3  Bland,  640;  Daniel  v.  Justice,  Dud.  (Ga). 
2;  C(x>  r.  Wickham,  33  Conn.  .389;  Neilson  r.  Ncilson,  5  Barb.  565;  Simpson  r. 
Hiatt.  13  Ircd.  470;  H.-u»«<.ll  r.  .Southern  Biiik,  2  Head.  .381;  Thatcher  r.  Pow- 
ell, G  Wheat.  1 18.  But  in  Illinois  it  i.s  the  duty  of  the  officer  first  to  levy  upon 
real  esUte.  Pitt*  r.  Magie,  24  111.  610;  Farrell  r.  McKfe.  3(5  111.  'J2.''..  A  levy 
may  Ixj  made  on  the  lands  of  the  judgment  debtor,  although  ho  has  personal 
property  by  his  conncnt.  Smith  r.  Ramlall,  6  Cal.  47;  65  Am.  Dec.  475; 
Springer  r.  .Jolinsou,  3  Harr.  (Del. )  515.  Or  where  he  diil  not  pro<luco  personal 
property  for  levy.     Grave*  r.  Merwin,  19  Conn.  96;  Sloan  v.  Stanly,  1 1  Ired. 


§  109        PERSONAL  rROPKRTY  SUBJECT  TO  EXECUTION.  2U 

subjivt  it  ti>  execution  niul  forcccl  sale.  In  tlic  pro- 
oeedin«4S  io  disiovcr  propi^rty,  tlio  oflicer  must,  of 
courso,  cxi'iviso  diliij^once,  and  proceed  with  siuli  wis- 
iltun  und  peiroption  as  would  cliaractorlzo  the  eilort>4 
of  a  man  of  ordinary  intelligence  in  transacting  his  pri- 
vate husines.s.  In  reference  to  this  part  of  the  officer's 
business,  \vr  can  make  no  suggestions  likely  to  be  of 
any  pi-aetical  assistance.  But  when  property  is  discov- 
ert'd,  it  is  essential  that  the  oflicer  should  know  whether 
it  is  such  as  he  is  authorized  to  seize  under  his  writ. 
Hence  this  chapter  shall  be  devoted  to  answering  the 
inquiry,  What  personal  property  may  be  seized  under 
execution?  Before  ])roceeding  to  answer  this  question 
in  detail,  we  must  stop  to  remark  that  while  a  Jicn 
facias  authorizes  the  ofHcer  to  levy  only  upon  "prop- 
erty subject  to  execution"  yet  this  does  not,  in  the  first 
instance,  require  him  to  consider  the  question  of  exemp- 
tion from  execution  where  the  exemption  docs  not  arise 
from  the  nature  of  the  property.  For  we  shall  here- 
after see  that  the  privilege  accorded  by  law  to  certain 
persons  to  hold  a  specified  amount  or  character  of  prop- 
erty, as  exempt  from  forced  sale,  is  in  most  states  a 
personal  privilege,  of  which  the  officer  need  take  no 
notice  until  the  defendant  claims  the  benefit  of  the  law, 

627.  "Againat  a  dcl>tor  refractory  or  negligent,  the  proper  legal  remeily  is  to 
lay  hold  of  his  efifects  for  paying  hi.s  creditors.  This  is  tlie  metliod  prescribed 
by  the  Roman  law,  with  the  following  limitation,  th.it  the  movables,  as  f>f  less 
importance,  niu.st  Iju  sold  lirst.  But  the  lUiman  law  w;is  defective  in  one  par- 
ticul.ir,  that  the  creditor  was  disapi)ointed  if  no  buyer  was  found.  Tlic  defect 
is  supplied  by  a  rescrii)t  of  the  emperor,  appointing  that,  failing  a  purchaser, 
the  gooda  sliall  Imj  adjudged  to  the  creditor  by  a  reasonable  extent.  Among 
other  remarkable  innovations  of  tliu  feudal  law,  one  is,  that  land  was  witlidrawu 
from  commerce,  and  could  not  be  attached  for  i)ayment  of  debt.  Neither  could 
the  vassal  be  attache>l  personally,  1>ccaU80  he  was  l>ound  personally  to  the  supe- 
rior for  service.  Tlic  movables,  therefore,  which  were  always  tlio  cliief  Bul>ject 
of  execation,  camo  now  to  bo  the  only  subject."     Karnes's  Law  Tracts,  338. 


245  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     §  109  a 

and  specifies  what  property  he  wishes  to  retain.^  Our 
inquiry,  therefore,  in  this  chapter  is.  What  property 
may  the  sheriff  levy  upon  where  the  benefit  of  exemp- 
tion is  not  claimed  as  a  personal  privilege?  We  shall 
treat,  —  1.  Of  the  Jcinds  of  personal  property  subject  to 
execution ;  2.  Of  the  estates  therein  which  are  so  sub- 
ject ;  3.  Of  defendants  whose  prcpert}''  cannot  be  seized ; 
4.  Of  property  withdrawn  from  execution  because  in 
custody  of  the  law ;  5.  Of  property  transferred  or  mort- 
gaged with  intent  to  hinder,  delay,  or  defraud  creditors; 
6.  Of  the  want  of  change  of  possession  as  evidence  of. 
fraud  in  the  transfer  of  property ;  7.  Of  property  which 
has  been  sold,  but  never  delivered  to  the  purchaser; 
and  8.  Of  property  acquired  by  fraud.  The  princi- 
ples announced  in  treating  of  the  third,  fourth,  and 
fifth  subdivisions  are  as  applicable  to  real  as  to  per- 
sonal property.  If  property  is  not  subject  to  execution, 
a  levy  thereon  and  a  sale  thereof,  based  on  such  levy, 
are  utterly  void.^  But  if  the  exemption  of  the  prop- 
'erty  is  a  mere  personal  privilege,  available  to  defend- 
ant when  he  may  choose  to  claim  it,  a  sale  under 
execution  by  his  express  or  implied  assent  is  valid. 

§  109  a.  Law  of  the  Situs  Controls. — Tlie  question 
whetlior  property  is  subject  to  execution  is  one  which 
must  be  determined  by  the  laws  of  the  state  in  which 
it  happens  to  be.  The  owner  of  property  may  send  it 
into  another  state,  or  it  may  always  have  been  in  one 
state  while  he  resided  in  another,  and  in  either  case 
the  question  may  arise  as  to  whether  the  right  to  sub- 

»Seo  §211. 

*  liarboiir  r.  Brcckcnriilgc,  4  Bibb,  MS;  Jeffries  r.  Sberburn,  21  Ind.  112; 
OrifSu  r.  KpcnccT,  (>  Hill,  525;  Bigclow  v.  Fiiicli,  II  liurb.  4'J8;  Gooch  v.  At- 
kiuH,  14  Matu*.  lilH. 


§110        rr.RsOXAL  TROrERTY  SURTECT  TO  EXECUTION.  24G 

joct  this  property  to  cxocuiion  is  n^ij^ulatecl  and  con- 
trolled l)V  tlio  law  of  liis  dimiicile,  or  by  that  of  the 
state  in  wliirh  thi-  [iiMitfity  is  toaiid.  '^Phis  <|Ui'stioii 
arises  most  tVequently  in  cases  where  the  owner  in  the 
state  of  his  domicile  has  made  some  conveyance  or 
transfer  of  the  property  valid  there,  and  which  would 
there  remove  the  property  I'rom  the  reach  of  his  execu- 
tion creditors,  hut  which  is  inoperative  against  such 
creditors  by  the  laws  of  the  state  in  which  the  prop- 
erty is  situate,  for  want  of  change  of  possession  or  from 
.  some  other  cause  known  to  the  laws  of  the  state.  In 
all  such  cases,  tlie  law  of  the  state  in  wliich  the  pro[)- 
erty  is  controls,  irrespective  of  the  question  of  the 
domicile  of  the  parties.  If  the  property  is  seized  and 
sold  in  such  state,  pursuant  to  the  laws  thereof,  and 
by  proceedings  sufficient  in  form  to  vest  title  in  the 
purchaser  there,  such  title  must  be  respected  in  every 
other  state  in  which  it  may  be  drawn  in  question, 
though  by  the  laws  of  the  latter  state  the  property 
was  not  suljject  to  execution  as  the  property  of  the 
defendant  in  execution  at  the  time  it  was  seized  and 
sold.^ 

KINDS  OF  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION. 

§  110.  Generally  all  Tangible  Property  is  Subject 
to  Levy.  —  "The  general  rule  of  law  is,  that  all  chat- 
tels, the  property  of  the  del)tor,  may  be  taken  in  exe- 
cution."" Perhaps  it  would  be  more  accurate  to  say 
that  all  kinds  of  personal  property  of  the  debtor,  which 
can  at  law  be  by  him  made  the  subject  of  a  voluntary 
transfer  of  title,  can,  by  execution,  be  made  the  subject  of 

'  Green  r.  Van  Buakirk,  5  Wall.  307;  Hervey  r.  R.  I.  Locomotive  Worka, 
93  U.  S.  064. 

*  Tamer  r.  Fendall,  1  Cranch,  134;  Crocker  on  Sheriffs,  sec.  451. 


247  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §  no 

an  involuntary  transfer.    It  is  sometimes  said  that  noth- 
ing can  be  seized  by  the  officer  which  cannot  be  sold.' 
But  this  is  not  strictly  true.     The  object  of  the  levy 
is  to  obtain  satisfaction;  and  this  object  is  usually,  but 
not  universally,  consummated  by  a  sale  of  the  "^prop- 
erty seized.     The  officer  cannot  lawfully  seize  anything 
which  could  not  be  made  to  contribute  to  the  satisfaction 
of  the  judgment.     But  if  a  thing  can,  without  sale,  be 
applied  upon  the  writ,  it  may  be  taken.     ''It  appears 
to  us  to  comport  with  good  policy,  as  well  as  justice,  to 
subject  everything  of  a  tangible  nature,  excepting  such 
things  as  the  humanity  of  the  law  preserves  to  the 
debtor,  and  mere  choses  in  action,  to  the  satisfaction  of 
the  debtor's  debts. "^     A  copyright  is  "an  incorporeal 
right,  secured   by  statute  to  the  author;  and,   being 
mtangible,  is  not  subject  to  seizure  and  sale  at  common 
law."«^    "There  would  certainly  be  great  difficulty  in 
assenting  to  the  proposition  that  patent  and  cop^  rii:rhts, 
held  under  the  laws  of  the  United  States,  are  subject 
to  seizure  and  sale  on  execution.     Not  to  repeat  what 
is  said  on  this  subject  in  14  How.  531,  it  may  be  added 
that  these  incorporeal  rights  do  not  exist  in  any  par- 
ticular state  or  district,  — that  they  are  co-extensive 
with  the  United  States.     There  is  nothing  in  any  act 
of  Congress,  or  in  the  nature  of  the  rights  themselves, 
to  give  them  locality  anywhere,  so  as  to  subject  them 
to  the  process  of  courts  liaving  jurisdiction  limited  by 
the  lines  of  states  and  districts.     That  an  execution  out 
of  the  court  of  common  pleas  for  the  county  of  Bristol, 
in  the  state  of  Massachusetts,  can  be  levied  on  an  in- 
corporeal   right  subsisting    in   Rhode    Island  or  New 

>  Knox  r.  Porter,  18  Mr,.  243;  Watsnii  on  Shoriffs,  ITS. 

»  Han.ly  v.  Dol.bin,  I'J  .lol.n.i.  'Jl'O;  Twiaain  v.  Swart,  4  Lans.  i.'G4. 

•St«phenar.  C'ady,  14  How.  531. 


§110       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  248 

York,  will  iKinlly  be  pretended.  Tliat  l)v  tlic  levy  of 
sueli  an  oxinntion  the  entire  right  eould  be  divided, 
and  so  much  ot*  it  as  niiu;ht  be  exercised  in  the  county 
o\'  l^ristol  soKl,  would  be  a  position  subject  to  much 
dithe-ulty.'"'  Whether  unpublished  manuscripts  are 
subject  to  execution  is  a  question  which  seems  to  have 
been  determined  in  but  one  case.  In  that  case  a  set 
of  absti-aet  books  eontainin^^,  we  presume,  memoranda 
compiled  from  the  pubhc  records,  and  so  arranged  as  to 
facihtatc  the  examination  of  titles  to  real  estate,  was 
made  the  subject  of  an  action  of  replevin,  and  the  ques- 
tion of  their  liability  to  execution  was  assumed  by  the 
court  to  be  involved.  The  court  held  that  the  propri- 
etor of  such  a  manuscript  had  a  right  cither  to  publish 
it  or  to  withhold  it  from  publication;  that  this  right 
was  a  personal  one,  of  which  he  could  not  be  divested 
otherwise  than  by  his  own  act;  that  the  value  of  the 
books  depended  on  the  information  contained  therein, 
and  not  on  the  books  themselves;  that  "no  law  can 
compel  a  man  to  [>ublish  what  he  docs  not  choose  to 
publish";  that  "it  would  be  very  absurd  to  hold  that 
books  could  be  seized  and  sold  under  execution,  which 
after  the  sale  the  purchaser  could  not  use  " ;  and  finally, 
that  the  books  were  not  subject  to  seizure  and  sale 
under  execution.-  The  reasoning  of  this  decision  does 
not  seem  irresistible. 

In  a  set  of  abstract  books,  or  in  any  other  manu- 
scripts, we  see  nothing  intangible,  nothing  which 
makes    it   difficult   or    improper   to    suljjcct   them    to 

'  Stevens  r.  Gladding,  17  How.  451.  See  Cooper  r.  Guim,  4  B.  Mon.  594, 
aAsnoiing  that  copyright  m  no<  subject  to  execution;  and  Woodworth  v.  Curtis, 
2  WfXKl.  &  M.  y.'K),  a«8Uiniug  that  it  w  Huhject.  Banker  r.  Caldwell,  3  Minn. 
94,  cited  by  Mr.  Herman  juj  showing  that  cfipyrigiitn  and  manuHcripta  are 
subject  to  execution,  in  not  an  authority  on  cither  side  of  the  queatiou. 

»  Dart  f.  Woodhouae,  40  Mich.  399;  29  Am.  Rep.  544. 


249  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §110 

execution.  Confessedly  they  are  property,  and  as 
such  may  be  valuable  to  their  compiler  or  owner,  and 
doubtless  he  may  by  his  voluntary  transfer  divest  him- 
self of  title,  and  vest  it  in  another.  His  transfer  may 
not  divest  him  of  the  information  contained  in  them, 
and  certainly  will  not  impair  the  skill  required  in  their 
compilation  or  use.  The  fact  that  he  does  not  and 
cannot  transfer  his  information  and  skill  constitutes 
no  ground  for  denying  his  ability  to  transfer  so  much 
as  is  transfci^able.  In  a  state  whose  statutes  in  gen- 
eral terms  declare  all  property  subject  to  execution,  we 
can  perceive  no  reason  for  holding  abstract  books  or 
other  valuable  writings  not  subject  to  execution.  If 
the  court  meant  by  saying  that  it  would  be  "absurd 
to  hold  that  books  could  be  seized  and  sold  under  exe- 
cution, which  the  purchaser  could  not  use,"  that  nothing 
can  be  sold  which  a  purchaser  cannot  comprehend  or 
skillfully  manage,  then  a  book  might  be  reserved  from 
execution  sale  because  written  in  a  language  which 
none  of  the  bidders  understood,  or  a  musical  instru- 
ment, because,  like  Hamlet's  flute,  they  were  not  com- 
petent to  play  upon  it.  That  the  interests  held  by 
inventors  and  authors,  under  grants  of  letters  patent 
or  copyright,  arc  not  directly  subject  to  execution  sale, 
is  owinLC  to  their  intan2fible  nature,  and  the  fact  that 
they  cannot  be  said  to  be  located  in  any  particular 
place,  so  as  to  be  subject  to  seizure  and  sale.  The  man- 
uscript, however,  is  not  intangible.  If  it  should  be 
sold  under  execution,  there  would  be  no  more  dilHculty 
in  defining,  recognizing,  and  preserving  the  rights  and 
interests  of  the  purchaser  than  if  his  purchase  had 
been  made  at  a  voluntary  sale.  Though  not  subject 
to  seizure,  patent  rights  are  subject  to  execution.     In 


§  1 10        PERSONAL  TROPERTY   SUB.TECT  TO   EXECUTION.  250 

England  tliov  pass  to  nssifrnoos  in  l>;inkrnptoy  lor  the 
benefit  o\'  i-reditors.'  In  thr  rnitcd  SlaU's  tliey  may 
be  reaelu'il  b}-  proeeetlinj^s  eitlu  r  in  clKiiu't'i-y  (tr  sup- 
j)leniental  to  exceuti(»n,  \vlion'l)y  (lir  dcfenilant  may  be 
c-omprlloil  to  transfer  by  a  |)ro|u  r  writinic  all  bis  right, 
title,  and  intrrrst  in  tlio  patent  liglit  to  a  receiver 
appointed  to  sell  the  same,  and  ap}»ly  the  proceeds  to 
the  satist'aetiou  of  the  jndgment."  Jf  tlie  ])atentee  of 
an  invention  constructs,  though  not  for  sale,  one  or 
more  t)f  the  machines  or  implements  covered  by  his 
letters  patent,  it  being  a  tangible  thing,  is  subject 
to  seizure,  and  consequently  to  sale  under  execution. 
The  purchaser's  rights  are  not  limited  to  the  mere 
materials  purchased,  but  include  the  right  to  use  the 
machine  as  fully  as  if  such  machine  had  been  volun- 
tarily sold  by  tlie  patentee.' 

Seat-;  in  stock-boards  in  large  cities  have  become,  in 
some  instances,  of  great  value,  and  though  in  the 
nature  of  personal  privileges,  their  transfer  from  one 
person  to  another  has  generally  been  respected,  if  made 
in  compliance  with  the  rules  or  by-laws  of  the  associa- 
tion. They  have  been  s[)oken  of  by  the  courts  as 
property;  and  it  has  been  said  that  on  bankruptcy 
they  would  pass  to  the  assignee,  subject  to  the  rules  of 
the  stock-boa nl."  If  this  be  true,  they  must  be  sub- 
ject to  execution  in  some  mode,  perhaps  by  creditor's 
i)ill,  or  by  proceedings  supplemental  to  execution,  in 
which  a  receiver  could  be  appointed,  and  a  transfer  to 

*  Hesse  r.  SttveiLson,  3  lios.  &  P.  577;  Nias  r.  AJamson,  3  Barn.  &  Aid. 
225;  Coles  r.  IJarrow,  4  Taunt.  754. 

•Pacific  Rmk  r.  Rol.inaon,  57  Cal.  520;  44  Am.  Rep.  120;  Barnes  v.  Mor- 
gan, 3  Hun,  7u3;  SU-'pheoj  r.  Cady,  14  Uow.  531;  Agcr  v.  Murray,  105  U.  S. 
126. 

»  Wilder  r.  Kent.  15  Fed.  Rep.  217. 

*  Hyde  r.  W00.L1,  1>4  U.  S.  525. 


251  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  111 

him  compelled.  In  the  only  case  considering  the  ques- 
tion which  we  have  been  able  to  discover,  it  was  held 
that  they  were  not  liable  to  seizure  and  sale  under 
execution.^  A  personal  lien  existing  in  favor  of  any 
person,  and  not  liable  to  voluntary  transfer,  can  never 
be  subjected  to  a  writ  of  execution.^  An  agreement 
that  the  plaintiff  will  not  seek  to  satisfy  his  judgment 
except  by  levy  on  specified  property  is  valid,  and  may 
be  enforced  against  him.^ 

§111.  Money.  —  It  was  at  one  time  insisted  that 
money  was  not  subject  to  seizure  upon  execution,  be- 
cause it  could  not  be  sold.*  But  this  reason  did  not 
long  prevail;  and  it  is  doubtful  whether  it  ever  pre- 
vailed at  all.  For  while  money  may  not — or,  more 
properly  speaking,  need  not — be  sold,  in  order  to  ap- 
ply it  to  the  execution,  yet  this  furnishes  no  sensible 
reason  why  it  should  not  be  taken  and  credited  on  the 
writ.  The  rule  is  now  m'cII  established  that  "money, 
whether  in  specie  or  in  bank  notes  (which  are  treated 
dviliter,  as  money),  if  in  tlie  possession  of  the  defend- 
ant, or  capable  of  being  identified  as  his  property,  may 
be  taken  in  execution."^     In  England,  the  decisions  on 

»  Pancoast  v.  Oowen,  9.3  Pa.  St.  GG. 

»  Holly  r.  Hug;^efor<l,  8  Pick.  73;  19  Am.  Dec.  303;  Kittredge  v.  Sumner, 
11  Pick.  50;  Lcgg  r.  Evans,  G  Mcca.  &  W.  3G;  8  Dowl.  P.  C.  177;  4  Jiir.  197. 
SeeaUoS  112. 

»  Whitney  r.  Haverhill  Ins.  Co.,  0  Allen,  .35. 

♦  Thu.s  in  Armisteail  r.  Philpot,  Duug.  281,  "Lord  MansfuKl  said  he  be- 
lieved there  were  old  cases  where  it  had  been  liehl  that  the  slieriff  could  not 
take  vtoneij  in  execution,  even  tliougli  found  in  tlie  defendant's  eirritolr,  and 
that  a  quaint  reason  was  jriven  for  it,  viz.,  tliat  money  could  not  be  nolit." 

'Crane  r.  Free.'je,  1  llarr.  (N.  J.)  307;  Turner  r.  Fen<lall,  1  Crauch,  134; 
State  r.  Taylor,  oG  Mo.  4I».");  Spencer  v.  Blaiudell,  4  N.  II.  19S;  17  Am.  Dec. 
412;  Handy  r.  Dobljin,  12  Johns.  220;  The  King  t».  Webb,  2  Show.  IGG;  Reno 
V.  Wilson,  1  Hemp.  9!;  Russell  v.  Lawton,  14  Wis.  202;  80  Am.  Dec.  7G9; 
Dolby  V.  MullioH.  3  Humpli.  437;  39  Am.  Dec.  180;  (ireon  r.  Palmer,  15  Cal. 
411;  70  Ajo.  Doc.  492;  Taylor's  Aiipeal,  1  Pa.  St.  390;  liardiug  r.  Stovcuaou,  0 


§  IIJ   PKUSONAL  rnOPEUTY  SUBJECT  TO  EXECUTION.    C.Vi 

this  suhJiH't  j»n>  inriH"(Hiont,  iiK'nu'cr,  and  i'onti-{i(lict(»rv. 
The  aisos  of  Annistfad  v.  V\\\\\)ot,  Dou;^-.  '2'M,  and  of 
The  Kin^4  r.  \\\li!>,  12  Show.  Kll.ari'  clcaily  in  liar- 
numy  with  the  Anu'ricaii  tK'ci.sions,  Some  later  casrs, 
however,  are  uncli;ri>toiHl  as  establisliiiig  a  (UU'erent 
ruk\'  Tliese  cases,  we  tlnnk,  will,  on  examination,  he 
fouutl  to  o'o  no  furthir  Ihan  to  establisli  thai  money  in 
the  hands  of  a  .^heriH*,  or  in  other  words,  in  cmtodia 
Icfjis,  cannot  he  levied  upon  under  either  execution  or 
attiiclunent,  —  a  position  whieli  is  perfectly  agreeal)lo 
to  that  of  the  American  eourts."  In  no  case  can 
iiione}'  he  lawfully  seized  by  the  officer  wdien  it  is  not 
in  the  possession  and  control  of  the  defendant.  Thus 
where  money  is  de^josited  in  bank,  it  becomes  the  i)rop- 
erty  of  the  bank,  and  cannot  be  seized  by  the  sherilT 
as  the  money  of  the  judgment  debtor.^ 

§112.  Glioses  in  Action.  —  By  the  common  law, 
choses  in  action  wi-rc  not  subject  to  seizure  and  sale 
under  execution.  This  common-law  rule  still  prevails, 
except  where  it  has  been  changed  by  statute;*   but  in 

liar.  &  J.  2C4;  Brooks  i:  Tliompson,  1  Root,  21G;  Doyle  v.  Sleeper,  1  Dana, 
5:]4;  Prentiss  r.  Bliss,  4  Vt.  ."^13;  24  Am.  Dec.  C31;  Holmes  v.  Nuncaster,  12 
Johns.  395;  Summers  r.  Cal.hvell,  2  Nott  &  McC.  341;  Meana  v.  Vance,  1 
Bailey,  31);  Noble  v.  Keliy,  40  N.  Y.  415, 

»  FieMliouse  v.  Croft,  4  East,  510;  Knight  v.  Criddcn,  9  East,  48;  ^Vil- 
lows  r.  Ball,  2  Boa.  &  P.  37G. 

*  By  section  12,  chapter  110,  of  statutes  of  1  and  2  Victoria,  the  sheriff  may 
seize,  under  a  ^cri /(iW/M,  any  money,  bank  notes,  checks,  bills  of  exchange, 
promiftsory  notes,  bonds,  specialties,  or  other  securities  for  moneys.  See 
Wood  r.  Wood,  .3  Galo  &  D.  532. 

»  Carroll  r.  Cone,  40  Barb.  220;  McMillan  v.  Richards,  9  Cal.  3r..');  70  Am. 
IHjc.  Go5;  Moorman  r.  Quick,  20  Ind.  G7;  Scott  r.  Smith,  2  Kan.  458. 

•  Willianw  r  Reynolds,  7  Ind.  G22;  Taylor  v.  (Jillcan,  23  Tex.  508;  Wat- 
kins  r.  Doniett,  1  Blind,  5.10;  (Jrogan  r.  Cooke,  2  Ball  &  B.  233;  Totten  ». 
McMaaus,  5  Ind.  407;  Price  r.  Bra«ly,  21  Tex.  C14;  Stewart  v.  Kiifjlish,  G  Ind. 
17G;  Smith  r.  K.  &  P.  R  R.  Co.,  45  Mc  547;  Mcflehce  r.  Cherry,  G  C;a.  550; 
Elli-iou  r.  Tuttle,  2)  Tcx.  2S3;  Harding  ?•.  Stevenson,  G  Har.  &  J.  2G4;  Denton 
V.  Livingston,  9  Johns.  90;  0  Am.  Dec.  204;  McClelland  v.  Hubbard,  2  Blackf. 


253  PERSOXAL  PROPERTY  SUBJECT  TO  EXECUHON.        §112 

most  states  provisions  have  been  made  by  statute, 
under  which  many  choses  in  action  may  be  reached  by 
garnishment,  and  thereby  made  to  contribute  to  the 
satisfaction  of  executions.  In  some  of  the  states, 
choses  in  action  may  be  levied  upon  and  sold  in  the 
same  manner  as  other  personal  estate/  These  statutes 
will  not,  however,  be  construed  as  authorizing  an  in- 
voluntary transfer  of  that  which  the  judgment  debtor 
could  not  transfer  voluntarily.  Thus  the  vendor's  lien 
held  by  one  who  has  sold  real  estate  is  not  subject  to 
voluntary  transfer,"  though  the  indebtedness  secured 
by  such  lien  may  be  assigned.  Hence,  while  such  in- 
debtedness can  be  sold  under  execution  as  a  chose  in 
action,  such  sale  cannot  entitle  the  purchaser  to  the 
benefit  of  the  licn.^  But  it  seems,  at  least  in  Califor- 
nia, that  all  kinds  of  choses  in  action  may  be  levied 

361;  McFerran  v.  Jones,  2  Litt.  222;  Johnson  v.  Crawford,  6  Blackf.  377; 
Moore  r.  Pillow,  3  Humph.  48S;  Humble  v.  Mitchell,  11  Ad.  &  E.  205;  Nash 
V.  Nash,  2  Ma.  &  D.  133;  Ransom  v.  Miner,  3  Baud.  G92;  Ingalls  v.  Lord,  1 
Cow.  2-tO;  Field  v.  I^wson,  5  Pike,  37G;  Greenwood  v.  Spiller,  2  Scam.  504; 
People  V.  Auditors,  5  Mich.  223;  Rlioada  v.  Megonigal,  2  Pa.  St.  39;  Pool  v. 
Glover,  2  Ired.  129. 

'  By  section  G88,  California  Code  of  Civil  Procedure,  "all  goods,  chattels, 
moneys,  and  other  property,  both  real  and  personal,  or  any  interest  therein  of 
the  judgment  debtor  not  exempt  by  law,  and  all  property  and  rights  of  prop- 
erty seized  and  held  under  attachment  in  the  action,  are  liable  to  execution. 
Shares  and  iuteresta  in  corporation  or  company,  and  debts  and  credits,  and  all 
other  property,  botli  real  ami  personal,  or  any  interest  in  either  real  or  per- 
sonal property,  and  all  other  prf>perty  not  capable  of  manual  delivery,  may  be 
attached  on  execution,  in  like  manner  as  upon  writs  of  attachment."  A  simi- 
lar statute  existed  in  Louisiana.  Sec.  047  of  Code  of  Practice.  Hence  in 
that  state  a  promissory  note  may  bo  levied  upon  and  sold.  State  v.  Judge,  20 
La.  Ann.  884;  Nup;nt  v.  McCalTrey,  33  La.  Ann.  271;  Brown  v.  Auder.son,  4 
Martin,  N.  S.,  410;  Wilson  r.  Munday,  5  La.  483;  Flouker  v.  Ballard,  2  La. 
Ann.  338;  Stockton  r.  Stanbrougli,  3  La.  Ann.  390.  Choses  in  action  are  also 
■abject  to  levy  and  sale  in  Iowa  (section  3040  of  the  code),  and  iu  Indiana  (Bay 
r.  HaulMpaugh,  74  Ind.  .397). 

»Baum  r.  (Jrigsby.  21  Cal.  172;  81  Am.  Doc.  153;  Lewis  r.  Covillaud,  21 
Cal.  178;  WiUiumH  I'.  Young,  21  Cal.  227.  The  aamo  rule  applies  to  mechan- 
ic*' liena.     Lovett  /•.  Brown,  40  N.  II.  511. 

*  KoM  I'.  Ucintzon,  30  Cal.  313. 


§ll-2        nOlSONAL   PROrERTY   SUBJECT  TO  EXECUTION.  254 

upon  aiiil  solil,'  I'xorpt  contliiijjont  and  coin  plicated 
contracts,  ot"  whirh  the  true  nnioinit  and  \alue  cannot 
bo  ascertained.  When  personal  propert}'  is  held  ad- 
versely to  its  owner,  his  interest  tiierein  is  a  mere 
chose  in  action,  and  cannot  bo  reached  by  execution,'^ 
unless  by  virtue  oi'  the  provisions  of  some  statute. 
33ut  there  are  many  choses  in  action,  which,  from  their 
intangible  character,  seem  to  be  incapable  of  being 
made  the  subjects  of  direct  levy  and  sale.  Of  this 
character  are  all  debts  and  credits  not  evidenced  by 
writing,  or  by  something  capable  of  being  seized  and 
taken  into  possession,  or  in  some  manner  made  to  bear 
witness  to  a  change  in  their  ownership.  A  chose  in 
action  evidenced  by  a  book-account  is  also  of  this 
character.  The  book-account  is  not  so  intimately  con- 
nected with  the  demands  charged  therein,  that  the 
seizure  of  the  book  is  equivalent  to  the  seizure  of  the 
demands.  There  is  no  mofins  by  which  these  demands 
can  be  transferred  by  a  direct  levy  and  sale.^  They 
must  bo  reached  by  garnishment,  trustee  process,  or 
proceedings  supplemental  to  or  in  aid  of  execution.* 
A  judgment  may  be  subjected  to  execution  as  a  credit 
or  chose  in  action  in  most  of  the  states  in  which  choses 
in  action  may  be  subjected  to  execution.  The  mode 
of  levying  upon  a  judgment,  and  of  applying  it  toward 
the  satisfaction  of  the  writ,  is  a  matter  of  some  diffi- 
culty. That  it  is  property  is  everywhere  conceded. 
But  though  it  is  evidenced  by  some  writing  or  matter 

»  Davis  V.  Mitchell,  34  Cal.  87;  Adams  v.  Hackctt,  7  Cal.  187. 

*  Commonwealth  v.  Abell,  G  J.  J.  Marsh.  470;  Thomas  v.  Thomas,  2  A.  K. 
Marsh.  430;  Wier  r.  Davis,  4  Ala.  442;  Carlos  v.  Ansley,  8  Ala.  900;  Ilorton 
r.  Smith,  8  Ala.  73;  43  Am.  Dec.  G28. 

'  Clark  V.  Warren,  7  Lans.  ISO;  Browor  v.  Smith,  17  Wis.  410. 

*  Brisco  r.  Askey,  12  lad.  OGG;  Chandler  v.  Kuaton,  17  Ind.  21.5;  Chandler 
V.  Davis,  17  Ind.  2G2;  Lake  Erie  R.  R.  Co.  v.  Eckley,  13  Ind.  G7. 


255  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §  113 

of  record,  such  writing  or  record  is  not  the  judgment, 
but  only  evidence  thereof.  It  would  be  impossible  to 
seize  the  judgment,  for  it  is  intangible,  and  improper 
to  seize  the  evidence  of  it,  for  that  should  remain  in 
the  custody  of  some  public  officer.  In  this  dilemma, 
the  major  portion  of  the  courts  considering  the  ques- 
tion have  concluded  that  a  judgment  cannot  be  levied 
upon  and  sold,  but  can  be  reached  only  by  garnish- 
ment.^ Iq  Louisiana,  a  judgment  ma}''  be  reached 
by  garnishment,^  or  seized  and  sold  under'execution;* 
while  in  Oregon  it  is  not  a  subject  of  garnishment,* 
but  whether  of  levy  and  sale  the  decisions  do  not 
state.  The  objection  urged  in  this  state  against  per- 
mitting the  garnishment  of  a  judgment  is,  that  to 
render  the  garnishment  effective,  it  may  be  necessary 
to  proceed  to  judgment  against  the  garnishee,  and  that 
there  will  then  be  two  judgments  against  him  in  favor 
of  different  persons,  based  upon  the  same  debt. 

§  113.  Crops,  whether  Growing-  or  Standing  in  the 
Field,  ready  to  be  harvested,  are,  when  produced  by 
annual  cultivation,  no  part  of  the  realty.  They  are, 
therefore,  liable  to  voluntary  transfer  as  chattels.^     It 

>  McBride  v.  Fallon,  G5  Cal.  301;  Wilson  v.  Matheson,  17  Fla.  630;  Osbora 
V.  Cloud,  23  Iowa,  104;  92  Am.  Dec.  413.  The  rule  has  been  changed  in  Iowa 
by  section  304G  of  the  code. 

■^  Hanua  v.  Bry,  5  La.  Ann.  651;  52  Am.  Dec.  606;  Righter  v.  Slidell,  9  La. 
Ann.  002. 

»  Safford  v.  Maxwell,  23  La.  Ann.  345. 

*  Despain  r.  Crow,  14  Or.  404;  Norton  v.  Winter,  1  Or.  47. 

'  Harri.s  v.  Frink,  49  N.  Y.  24;  10  Am.  Rep.  318;  Craft'?'.  Fitch,  56  III.  373; 
11  Am.  Rep.  85;  VVliii)plc  v.  Foot,  2  John.s.  418;  3  Am.  Dec.  442;  Craddock  v. 
Riddlesharger,  2  Dana,  205;  Mattock  v.  Fry,  15  Ind.  483;  Evans  r.  Roberts,  5 
Barn.  &  C.  829;  Pourrier  v.  Raymond,  1  Hann.  512;  Parker  v.  Staniland,  11 
Eaut,  362;  Austin  v.  Sawyer,  9  Cow.  39;  Jones  r.  Flint,  10  Ad.  &  E.  7r)3; 
Poulter  >•.  Kdliugbeck,  1  Bos.  &  P.  398;  Austin  r.  Sawyer,  9  Cow.  39;  Mum- 
ford  r.  Whitney,  15  Wend.  387;  30  Am.  Doc.  60;  We^tbrook  r.  i:agcr,  1  Harr. 
(N.J.)  81;  Puruer  f.  Piercy,  40Md.  212.     It  is  immaterial  whether  the  growiug 


§  113        PERSONAL  PROrERTY  SUBJECT  TO  EXECUTION.  256 

is  equally  well  settled  that  tluy  may  bo  seized  and 
sold  under  exeeution.^  "Various  growinj^  vegetables, 
termed  in  law  c;mblemer,ts,  and  properly  speaking  the 
profits  of  soiun  land,  but  extended  in  law  not  only  to 
growing  erops  of  eorn,  but  to  roots  planted,  and  other 
annual  artificial  profit,  arc  deemed  personal  property, 
and  pass  as  such  to  the  executor  or  administrator  of  the 
occupier,  if  he  die  before  he  has  actually  cut,  reaped, 
or  gathered  the  same.  All  vegetable  productions  aro 
so  classed  when  they  are  raised  annually  by  labor  and 
manure,  which  are  considerations  of  a  personal  nature. 
At  common  law,  fructus  indnstriales,  as  growing  corn 
and  other  annual  produce,  which  would  go  to  the  exec- 
utor upon  death,  may  be  taken  in  execution."^  "We 
have  no  doubt  that  corn,  or  any  other  product  of  the 
soil  raised  annually  by  labor  and  cultivation,  is  personal 
estate.  It  is,  therefore,  liable  to  be  seized  on  execu- 
tion, and  may  be  sold  as  other  personal  estate."^  A 
growing  crop,  raised  annually  by  labor  and  cultivation, 
is,  as  respects  an  execution  against  the  owner,  a  mere 
chattel,  and  subject  as  such  to  be  taken  and  sold.  A 
purchaser,  on  such  sale,  acquires  the  rights  and  inter- 
crop be  such  as  can  be  severed,  like  corn  or  wheat,  or  such  as  must  be  dug  out 
of  the  ground,  as  turnips  or  potatoes.  Dunne  v.  Ferguson,  Haj'es,  542;  Sains- 
bury  V.  Matthews,  4  Mees.  &  W.  343;  Warick  v.  Bruce,  2  Maulo  &  S.  205. 
Some  of  the  English  decisions,  however,  deny  tliat  crops  aro  personal  property, 
and  affirm  that  they  cannot  bo  transferred  except  as  real  estate.  Einmerson 
V.  Heelis,  2  Taunt.  38;  Earl  of  Falmouth  v.  Thomas,  1  Cromp.  &  M.  89;  3 
Tyrw.  9G3. 

'  Northern  i'.  State,  1  Ind.  113;  Hartwell  v.  Bissell,  17  Johns.  128;  Coomba 
V.  Jordan,  3  Bland,  312;  22  Am.  Dec.  23G;  Cassilly  v.  Rhodes,  12  Ohio, 
88;  Parham  r.  Thompson,  2  J.  J.  Marsh.  159;  Peacock  v.  Purvis,  2  Brod.  & 
B.  3ii2;  Bloom  v.  Welsh,  3  Dutch.  178;  Ciine  v.  Tifts,  05  Ga.  044;  Thompson 
r.  Craigmyle,  4  B.  Mon.  391;  41  Am.  Dec.  240;  Preston  v.  Kyan,  45  Mich. 
174;  contrn:  Norris  r.  Watson,  22  N.  II.  304;  55  Am.  Dec.  100. 

»  Smith  V.  Tritt,  1  Dev.  &  B.  241;  28  Am.  Dec.  505;  Poole's  Case,  1  Salk. 
368;  Scorell  v.  Boxall,  1  Younge  &  J.  398;  Sliannon  ?;.  Jones,  12  Ired.  206. 

■  PenhaUow  v.  Dwight,  7  Mass.  35;  5  Am.  Dec.  21. 


257  PERSONAL  PROPERTY  SUBJECT  TO  EXECCTTION-.        §  11  a 

ests  of  the  defendant  in  execution  to  the  crop,  with  the- 
right  of  ingress,  egress,  and  regress,  for  the  purpose  of 
gathering  and  carrj^ing  it  away.  ^  When  a  product  of 
the  soil  is  claimed  not  to  be  subject  to  seizure  and  sale 
under  a  fieri  facias,  the  claim  must  be  determined  by 
ascertaining  whether  such  product  is  real  or  personal 
estate;  and  this  last  question  is,  in  turn,  to  be  settled 
by  inquiring  whether  the  product  is  chiefly  the  result 
of  roots  permanently  attached  to  the  soil,  or  of  the 
labor  and  skill  of  the  defendant  in  sowing  and  cultivat- 
ing the  soil. 

The  decisions  holding  certain  crops  to  be  personal 
estate,  and  therefore  subject  to  execution,  have  gen- 
erally embraced  nothing  beyond  those  crops  which, 
being  sown  or  planted,  are  capable  of  reaching  perfec- 
tion within  one  year.  But  we  think  a  crop  which 
could  not  reach  perfection  in  less  than  two  or  three 
years  would  also  be  personal  property,  if  its  growth 
can  be  regarded  as  chiefly  attributable  to  the  skill 
and  labor  of  the  owner.  We  think,  too,  that  the  pur- 
pose for  which  the  product  is  cultivated  may  be  taken, 
into  consideration  in  determining  its  character  as  real 
or  personal  estate.  Thus  fruit-trees,  planted  in  an 
orchard  to  permanently  enhance  the  value  of  the  real 
estate,  ought  to  be  regarded  in  a  very  diflferent  lio-ht. 
from  trees  growing  in  a  nursery  for  the  purposes  of 
sale,  and  which  the  owner  treats  as  merchandise,  to  be 

'  Sheppard  v.  Pliilbrick,  2  Denio,  175;  Stewart  v.  Doughty,  9  Jolms.  108. 
At  an  early  date,  in  Alaljaina,  an  execution  could  not  be  levied  on  a  growing 
or  ungathered  crop.  Adams  v.  Tanner,  5  Ala.  740;  Evans  v.  Lamar,  21  Ala. 
333.  At  a  later  period  tlie  common-law  rule  prevailed,  McKenzio  v.  Lamp- 
ley,  31  Ala.  62G.  At  present,  growing  ami  ungathered  crops  are  exempt  from 
execution.  Rev.  Codo  Ala.,  sec.  2870.  Statutes  have  also  been  enacted  in 
Kentucky,  Michigan,  and  Tennessee,  providing  when  crops  may  Ijo  taken  ia 
execution. 

Vol.  I. —  17 


§113        riXSONAL  PROPEllTY   SUBJKCr  TO  KXECUTION.  253 

sold  to  wlionisoi'vor  may  apply. ^  ])iit  the  Lii'iu-ral  rule 
uiKloubtodly  is,  that  "urowiiiij^  trcos,  iVuit,  »)r  grass, 
the  natural  prodiu'c  of  the  earth,  and  not  annual  pro- 
ductions raised  by  the  numuranee  and  iiuhisliy  of  man, 
are  pareel  of  the  land  itself,  and  not  chattels."  '^ 
".Vnnual  productions  of  fruits  of  the  earth,  as  clover, 
timothy,  spontaneous  grasses,  apples,  j^ears,  peaches, 
cherries,  etc.,  arc  considered  as  incidents  to  the  land 
in  which  they  are  nourished,  and  arc  therefore  not  per- 
sonal.''^ Fruit  on  trees  cannot  be  levied  upon.''  Of 
course,  the  rule  is  otherwise  where  fruit,  grass,  or  any 
other  natural  i>roduct  of  the  earth  has  been  severed 
therefrom,  and  thereby  converted  into  personalt3^ 
The  ftxct  that  a  crop  is  produced  by  perennial  roots  is 
by  no  means  conclusive  that  it  is  to  be  ranked  as  real 
estate.  The  true  test  is,  whether  the  crop  is  produced 
chiefly  by  the  manurance  and  industry  of  the  owner. 
Thus  hop  roots  are  perennial,  and,  unlike  potatoes,  arc 
regarded  as  real  estate;  but  the  crop  grown  from  such 
roots,  being  almost  entirely  dependent  for  its  value  on 
manurance  and  industry,  is  personal  estate.^  Hops 
growing  and  maturing  on  the  vines  ma}''  therefore  be 
levied  upon  and  sold  under  execution.^  It  seems  to 
be  well  settled  that  some  kinds  of  property,  which  under 
ordinary   circumstances   would    be    regarded   as   real 

»  Miller  r.  Baker,  1  Met.  27;  Whitmarsh  v.  Walker,  1  Met.  313. 

»  CJrecn  r.  Armstrong,  1  Denio,  55G;  Teal  v.  Auty,  2  Brod.  &  B.  99;  Slocum 
V.  Seymour,  30  N.  J.  L.  138;  Crosby  v.  Wadsworth,  G  East,  G02;  Koilwell  v. 
Phillips,  U  Mecs.  &  W.  501 ;  Putney  >•.  Day,  G  N.  H.  430;  25  Am.  Dec.  470; 
OlmetcaJ  r.  Nilos,  7  X.  II.  522;  Bank  of  Lansiugburg  v.  Crary,  1  Barb.  542;. 
Atlamd  r.  Smith,  Brce.sc,  221. 

'  Cnnldock  r.  Pviddlesbargur,  2  Dana,  206. 

*  Roe  r.  GcmmcU,  1  Houdt.  9. 

^Latham  v.  Atwood,  Cro.  Car.  515;  Anonymous  Case,  Freem.  Ch.  210;. 
Fijiher  r.  Forlxjs,  referred  to  9  Vin.  Abr.  373,  pi.  82.  See  also  Evans  v. 
RolK-rti,  5  Bam.  &  C.  829;  Graves  v.  Weld,  5  Bam.  &  Adol.  105. 

*  Frank  r.  Harrington,  36  Barb.  415. 


259  PERSONAL  PROPERTY    SUBJECT  TO  EXECUTION.       §  113 

estate,  ma}^,  under  peculiar  circumstances,  acquire  or 
retain  the  character  of  personal  estate.  Thus  a 
building  or  fence  placed  on  lands  by  a  tenant  may,  by 
agreement  between  him  and  his  landlord,  retain  its 
character  of  personalty.^  So  the  owner  of  land 
may,  by  a  transfer  in  writing,  sell  the  trees  thereon, 
and  thus  separate  them  from  the  realty.  Or  grass  or 
trees  may  belong  to  a  tenant  according  to  the  terms  of 
his  lease.  In  such  case,  they  are  personal  property, 
and  liable  to  be  seized  and  sold  under  an  execution 
against  the  tenant.^  It  seems  to  be  conceded  that 
where  lands  are  leased  to  a  professional  gardener  or 
nurseryman,  for  the  purpose  of  carrying  on  his  trade, 
the  shrubs,  trees,  and  flowers  which  he  may  plant  and 
have  growing  on  such  lands  are  regarded  as  trade 
fixtures.  They  are,  therefore,  during  the  continuance 
of  his  term,  to  be  treated  as  personal  propert}''.^  In 
Louisiana,  a  growing  crop  is  regarded  as  part  of  the 
realty  when  it  belongs  to  the  owner  of  the  land ;  but 
when  the  property  of  a  lessee,  it  is  mere  chattel,  and 
is  subject  to  execution  as  such.*  Where  a  mortgage 
is  given  upon  real  estate  it  does  not  affect  the  right  of 
the  mortgagor  to  deal  with  the  crops  growing  thereon 
as  personal  property.  He  may  transfer  or  encumber 
them  either  voluntarily  or  involuntarily.  If  they  are 
seized  upon  execution,  the  rights  of  the  seizing  creditor 

»  SheMon  v.  E.lward.s,  35  N.  Y.  270;  Ford  v.  Coblj,  20  N.  Y.  344;  Smith  v. 
Benaon,  1  Hill,  17U. 

»  Smith  r.  Jenks,  1  Denio,  580,  affirmed  as  Jenka  r.  Smith,  1  N.  Y.  90; 
Wintermute  r.  Light,  40  B;irl).  278.  Onu  who,  under  a  timber  lease,  has  the 
right  to  cut  and  removo  timber,  has  a  mere  chattel  interest,  which  is  subject 
to  Halo  .'w  j>ernonalty.     Caldwell  r.  rificld,  4Zab.  IGl. 

*  iV-nton  r.  Koliart,  2  K;i«t,  Ul ;  Wyndiiam  v.  Way,  4  Taunt.  31G;  Maplos  v. 
Millon,  31  Conn.  .VJH;  Miller  r.  li-ikur,  1  Met.  27.  For  e.ssay  on  growing 
crops,  BOO  7  Chic.  L.  N.  .301. 

*  I'orche  v.  Bodiu,  28  La.  Auu.  701;  Pickeud  r.  Webster,  31  La.  Ann.  870. 


§113        PERSONAL  PROrERTY   SUBJECT  TO  EXECUTION.  2G0 

bccouio  paraiiunuit  to  those  of  the  inorti^aLTcw  li^  the 
latter,  upon  showhig  that  the  mortgagor  i.s  uisolvont, 
obt;iins  a  receiver  oi'  the  lents  and  profits,  the  appoint- 
ment of  such  receiver  cannot  operate  retroactively  so 
as  to  vest  in  him  a  right  to  crops  previously  attached. 
In  such  cases  the  rij^hts  of  the  receiver  seem  not  to 
relate  to  the  date  of  the  mortgage,  but  to  be  such  only 
as  were  vested  in  the  mortLiatror  at  the  time  of  the 
appointment.^ 

While  growing  crops  are  generally  subject  to  execu- 
tion as  personal  estate,  it  may  happen  that  the  interest 
of  the  defendant  therein  at  the  time  of  the  levy  is  not 
such  as  to  warrant  a  levy  thereon.  Thus  in  Indiana, 
where  lands  are  held  by  husband  and  wife  as  tenants 
by  the  entireties,  and  he  is  without  power  to  sell  or  en- 
cumber them,  the  crops  raised  thereon  are  held  not  to 
be  subject  to  execution  against  him.^ 

Where  crops  have  been  raised  by  one  person  on  the 
land  of  another,  under  a  lease  or  contract  by  which  he 
and  the  owner  of  the  land  share  in  such  crops,  there  is 
some  doubt  concernins:  the  nature  of  the  interests  of 
the  parties,  and  therefore  some  difficulty  in  determin- 
ing when  and  against  whom  they  are  subject  to  execu- 
tion. They  are  in  some  instances  subject  to  execution 
against  the  land-owner  only,  in  other  instances  against 
the  cropper  only,  and  in  still  other  instances  against  both 
the  land-c)wner  and  the  cropper.  In  by  far  the  greater 
number  of  cases  the  contract  or  leasing  is  such  that 
both  parties  at  all  times  have  an  interest  in  the  crops 
prior  to  their  division  as  tenants  in  common  thereof;' 

»  Favorite  r.  Deardoff,  84  lud.  555;  Rider  v.  Vrooraan,  12  Hud,  299. 

-  Patton  V.  Rankin,  G8  Ind.  245;  .34  Am.  Rep.  254. 

*  Freeman  on  Cotenancy  and  Partition,  aec.  100;  Foote  v.  Colvin,  3  Johns. 
210:  3  Am.  Dec  478;  De  Mott  v.  Ha^erman,  8  Cow.  220;  18  Am.  Dec.  443; 
Putnam  r.  Wiac,  1  Uill,  234;  37  Am.  Dec.  309;  Weutworth  v.  Portsmouth  R. 


261  PERSOXAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  113 

and  where  this  is  so,  the  interest  of  each  is  necessarily 
subject  to  an  execution  against  him.     The  question  is 
one  of  intention,  to  be  determined  from  the  whole  con- 
tract.    If  the  contract  shows  that  it  was  the  intention 
of  the  parties  to  divide  the  specific  products  of  the 
premises,  the  intention  would  seem  to  be  manifest  that 
each  should  at  all  times  prior  to  the  division  have  a 
title  to  his  moiety  of  such  products.     If,  on  the  other 
hand,  the  lease  or  contract  contains  words  importing  a 
present  demise  and  a  reservation  of  a  portion  of  the 
crop  as  rent,  the  parties  seem  to  stand  to\^aid  each 
other  in  the  relation  of  debtor  and  creditor,  the  debt 
being  payable  in  produce;  and  the  tenant  is  the  sole 
owner  of  such  produce  until  the  part  due  the  landlord 
is  segregated  and  paid  to  him.^    Where  this  is  the  case, 
the  crops  are  subject  to  an  execution  against  the  ten- 
ant, but  to  none  against  the  landlord.^     The  leasing  or 
contract,  taken  as  a  whole,  may,  in  substance,  provide 
that  the  cropper  give  his  services  in  consideration  of 
receiving  a  portion  of  the  crop.     In  this  event  he  is 
regarded  as  having  possession  of  the  laud  merely  for 
the  purposes  of  cultivating  and  harvesting  his  crop;  the 
obligation  of  the  landlord  to  him  is  in  the  nature  of  a 
debt  merely,  and  he  has  no  title  to  any  part  of  the  crop 
until  its  segregation  and  payment  to  him.     His  interest 

R.,  55  N.  H.  546;  Guest  v.  Opdyke,  31  N.  J.  L.  552;  Cooper  v.  McQrew,  8  Or. 
327;  Esdon  v.  Colhurn,  28  Vt.  G31;  67  Am.  Dec.  730;  Beriial  v.  Hovious,  17 
Cal.  541;  79  Am.  Doc.  147;  Delany  v.  Root,  99  Mass.  546;  Jolinsou  v.  Hoffman, 
53  Mo.  204;  Lowe  v.  Miller,  3  Gratt.  205;  46  Am.  Dec.  188;  Thompson  v. 
Mawhinny,  17  Ala.  .362;  52  Am.  Dec.  176;  SchcU  v.  Simon,  66  Cal.  264. 

•  Deaver  v.  Rice,  4  Dcv.  &  B.  431;  .34  Am.  Dec.  .383;  Woodruff  v.  Adams, 
5  Blackf.  317;  35  Am.  Dec.  122;  Harrison  v.  Ricks,  71  N.  C.  7;  Walls  v.  Pres- 
ton, 25  Cal.  59;  Dixon  r.  Niccolls,  .39  111.  372;  89  Am.  Dec.  312;  Sargent  v. 
Courrier,  66  111.  245;  6  Am.  Rep.  .-524;  Front  r.  Hardin,  56  Iii.l.  165;  Town^end 
V.  Isenberger,  45  Iowa,  670;  Warner  v.  Abbey,  112  Mass.  3.')5;  Darling  v.  Kelly, 
113  Mas-i.  29;  Dockliam  v.  Parker,  8  Greeul.  137;  23  Am.  Dec.  547. 

*  Waltdou  V.  Bryan,  64  N.  C.  764. 


§114   PERSONAL  PROrERTY  SUBJECT  TO  EXECUTION.    2C.2 

is  uo{  sulijort  to  oxoi'uluMi/  Tlic  owner  of  the  land 
may  always,  l>y  a[>t  words  in  Ills  contract  or  loaso,  pro- 
viilc  that  tlie  title  to  all  llic  crops  raised  sliall  remain 
in  him  until  the  tenant's  or  cro[)pur's  part  shall  bo  sei!^- 
ro«jfated  anil  delivered  to  him;  and  where  such  worda 
are  employed,  no  one  other  than  the  land-owner  has  any 
interest  in  the  crops  subject  to  seizure  and  sale  under 
execution.'-  The  parties  may  also  make  their  relation 
that  of  partners,  in  which  event  their  property  will  be 
subject  to  execution  as  other  partnership  property.^ 

§  114.  Fixtures.  —  It  was  formerly  thought  that 
fixtures^  were  not  liable  to  betaken  in  execution.  But 
it  is  now  wrll  settled  that  they  are  subject  to  be  made 
to  contribute  to  the  payment  of  the  debts  of  their 
owner.^  The  chief  difficulty  is  in  deciding  what  is  a 
fixtuiw  The  tests  for  makiuGf  a  correct  decision  can- 
not  be  fully  stated  otherwise  than  by  writing  a  treatise 
on  the  subject  of  fixtures.  It  may  be,  however, 
remarked  here,  that  the  intent  of  the  parties,  or,  more 

»  Brazier  r.  Ansley,  11  Ireil.  12;  51  Am.  Dec.  408;  Jeter  v.  Penn,  2S  La. 
Ann.  230;  2G  Am.  Rep.  9S;  McNeely  n  Hart,  10  IrcJ.  G3;  51  Am.  Dec.  077; 
State  V.  Burwell,  G3  Me.  GGl;  Porter  v.  Chandler,  27  jMinn.  301;  38  Am.  Rep. 
293. 

»  Wentworth  v.  Miller,  53  Cal.  9;  Pender  v.  Rhea,  32  Ark.  435;  Esdon  v. 
Coll)iirii,  28  Vt.  G31;  Moulton  v.  Robinson,  27  N.  H.  550;  Kelley  u.  Weston, 
20  Me.  232;  Howell  r.  Foster,  G5  Cal.  1G9. 

3  Reynolds  t'.  Pool,  84  N.  C.  37;  37  Am.  Rep.  G07,  note;  McCrary  v. 
Slaughter,  58  Ala.  230;  Christian  v.  Crocker,  25  Ark.  327;  Donnell  v.  Uarske, 
C7  Mo.  170;  Holenfield  v.  White,  52  Ga.  5G7;  Musser  v.  Brink,  C8  Mo.  242. 

*  We  iibC  the  term  "fixture  "according  to  the  definition  given  in  Amos  and 
Ferard  on  Fixtures,  "aa  denoting  those  personal  chattels  which  have  been  an- 
nexed to  tlie  land,  and  which  m(iy  be  afterwards  severed  and  removed  by  the 
party  who  lia-s  annexed  them,  or  his  personal  representative,  against  the  will  of 
tlic  owner  of  the  freeliold."  See  Hallen  v.  Rundcr,  1  Cromp.  M.  &  R.  27G;  3 
Tyrw.  959. 

'  Amos  and  Ferard  on  Fixtures,  321;  Brown  on  Fixtures,  sec.  103;  Poole's 
Case,  1  Salk.  3G8;  Pittr.  Shevv,  4  liarn.  &  Aid.  207;  Lemar  v.  Miles,  4  Watts,  S.'iO; 
Doty  V.  Gorham,  6  Pick-  487;  10  Am.  Dec.  417;  Umbouy  v.  Jones,  19  N.  Y.  234. 


263  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §114 

properly  speaking,  the  agreement  between  the  owner 
of  the  soil  and  the  person  who  has  attached  the  thing 
thereto,  is  of  vital  importance  in  determining  whether 
such  thing  has  become  a  part  of  real  estate.  For  it 
seems  to  be  well  settled  that  a  house  or  other  structure, 
which  is  not  of  such  a  character  that  it  must  necessarily 
be  real  estate,  but  which  under  ordinary  circumstances 
would  be  so  deemed,  may,  by  agreement  between  the 
owner  of  the  freehold  and  the  builder  of  the  house  or 
structure,  retain  the  character  of  a  chattel,  and  be  sub- 
ject to  removal  and  sale  as  such/  Even  where  erected 
under  such  circumstances  that  the  land-owner  might 
retain  it,  he  may  waive  his  rights  and  authorize  its  re- 
moval; and  when  he  does  so  it  becomes  the  personal 
property  of  the  tenant  or  other  person  thus  authorized 
to  remove  it,  and  is  subject  to  lev}^  under  an  execution 
against  him.^  Improvements  erected  on  public  lands  are 
regarded  as  private  property  for  most  purposes,  and  as 
such  may  be  levied  upon  and  sold.^  The  right  to  so  levy 
and  sell  is  manifestly  subordinate  to  the  power  of  the 
government  to  manage  and  dispose  of  such  lands.  The 
title  of  the  purchaser  cannot,  therefore,  prevail  against 
the  United  States,  nor  against  its  patentee  if  tlic  im- 
provements were  so  attached  as  to  have  become  a  part 
of  the  realty.     It  may  also  be  mentioned  that  the  re- 

^  Curtis r.  Riddle,  7  Allen,  1S7;  Wells  v.  Bannister,  5  Mass.  514;  Fairburu 
V.  Eastwood,  C  Mees.  &  W.  G79;  Aldricli  v.  Parsons,  G  N.  H.  555;  Osgood  v. 
Howard,  G  Grccul.  452;  20  Am.  Dec.  322;  Curtis  r.  Iloyt,  19  Coun.  IGG;  Rus- 
sell V.  Richards,  1  Fairf.  429;  25  Am.  Dec.  254;  Dame  v.  Dame,  38  N.  H.  429; 
75  Am.  Dec.  195;  Wall  v.  Hinds,  4  Cray,  273;  G4  Am.  Dee.  G4;  Hunt  v.  Bay 
State  Iron  Co.,  97  Mass.  2S3;  Crippeu  v.  Morrison,  13  Mich.  37;  Ford  v.  Cobb, 
20  N.  Y.  344;  Haven  v.  Emory,  33  N.  II.  GG;  Merritt  v.  Judd,  14  Cal.  70; 
Teaff?-.  Hewitt,  1  Ohio  St.  534;  59  Am.  Dec.  G34. 

'  Foster  r.  Mubu,  4  Ala.  402;  Jewctt  v.  Partridge,  12  Me.  243;  28  Am.  Dec. 
173. 

'  Switzer  r.  Skiles,  3  Gilm.  529;  44  Am.  Dec.  723;  Turney  v.  Saunders,  4 
Scam.  527 ;  French  v.  Carr,  2  Gilm.  GG4. 


§  111        PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  264 

lat'uMi  to  tlir  owiuTsliip  of  tlicsoil  of  the  person  attach- 
ing the  tliinn"  olaiiiK'cl  to  he  a  liKturc  is  a  vci-y  material 
faet  in  (.Irterniiiiini^  whether  such  thinj^ean  he  .seizid  and 
8okl  unihT  a  fieri  facias  iv^must  liini.  If,  at  tlie  time  of 
sueli  attaeliin<^,  lie  was  the  ownerof  the  frecliokl,  itnmst 
boa  viTv  clear  case,  inckuHl,  tliat  will  wairaiit  a  levy  on 
the  property  so  attached.  For  many  thiii'jcs  which,  if 
jilaeed  on  tlie  soil  by  a  stranger  to  the  title,  would  be 
clearly  regarded  as  personal  property,  will,  if  placed 
there  in  the  same  manner  by  the  owner,  be  regarded 
as  a  |>ait  of  the  freehold,'  But  some  things  which 
were  fastened  to  the  realty  have  been  iield  to  be  sub- 
ject to  execution  as  personalty  on  a  writ  against  the 
owner  of  the  freehold.  This  is  particularly  the  case 
with  machinery  used  for  manufacturing,  when  it  can 
be  disconnected  without  any  material  injury,  and  when 
it  was  attached  only  for  the  purpose  of  keeping  it  firm 
and  stead V,  and  enabling  its  use  to  be  more  beneficial.'^ 
But  even  in  such  a  case  it  seems  that  the  intent  of  the 
owner  in  attaching  the  machinery  must  be  considered ; 

*  Amos  and  Ferard  on  Fixtures,  323;  Winn  v.  Ingleby,  5  Barn.  &  Aid.  625;  1 
Dowl.  &  R.  247;  Place  v.  Fagg,  ^  Man.  &  R.  277;  Stewart  v.  Lambe,  1  Ball  & 
B.  506;  4  Moore,  281;  Snedekcr  v.  Warring,  12  N.  Y.  170;  Minsall  v.  Lloyd, 
2  Mees.  &  W.  450;  Murpliy  &  Hurlston,  125;  1  Jur.  330;  Mackintosh  v. 
Trotter,  3  Mees.  &  W.  184;  Voorhis  v.  Freeman,  2  Watts  &  .S.  110;  37  Am. 
Dec.  490;  Brown  on  Fixtures,  sec.  172-177  a;  Corless  v.  Van  Sagen,  29  Me. 
115;  Winslow  v.  Merchants'  Insurance  Co.,  4  Met.  .300;  38  Am.  Dec.  308;  Trull 
V.  Fuller,  28  Me.  545;  Morgan  v.  Arthurs,  3  Watts,  140;  Oves  v.  Oglesby, 
7  Watta,  100;  Union  Bank  v.  Emerson,  15  Mass.  159;  Bishop  r.  Bishop,  11  N.  Y. 
123;  02  Am.  Dec.  08. 

»  Tobias  r.  Francis,  3  Vt.  425;  23  Am.  Dec.  217;  Sturgis  v.  Warren,  11  Vt. 
435;  Swift  r.  Thompson,  9  Conn.  03;  21  Am.  Dec.  718;  Bartlett  v.  Wood,  32 
Vt.  .372;  Fullam  r.  Stearns,  30  Vt.  443;  Hill  v.  Wentworth,  28  Vt.  428;  Gale 
r.  Ward,  14  Mass.  352;  7  Am.  Dec.  223;  Cresson  r-.  Stout,  17  Jolms.  110;  8  Am. 
Dec.  373;  Farrar  r.  Chauffette,  5  Deuio,  527;  Vand<;rpof)l  r.  Alien,  10  Barb. 
1.57;  Murdock  r.  Gifford,  IS  N.  Y.  2S;  Frecland  v.  Southworth,  24  Wen.l.  191. 
See  Hutchinson  r.  Kay,  23  lieav.  413;  Haley  r.  Hainmersly,  3  De  Gcx,  F.  &  J. 
587;  7  Jur.,  N.  S.,  705;  :J0  L.  J.  Ch.  771;  9  Week.  Rep.  502;  4  L.  T.,  N.  S., 
209.     Sec  note  to  Pierce  v.  George,  11  Am.  Rep.  314. 


265  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  lU 

and  if  it  appears  tbat  he  attached  the  property  to  the 
realty  with  a  view  that  it  should  remain  there  perma* 
nently,  it  must  be  treated  as  real  estate/  This  inten- 
tion is  to  be  ''  inferred  from  the  nature  of  the  article 
affixed,  the  relation  and  situation  of  the  imrty  making  the 
annexation,  the  structure  and  mode  of  annexation,  and 
the  purpose  or  use  for  which  the  annexation  has  been  ' 
made."^ 

The  circumstances  in  which  fixtures  were  attached 
to  the  soil  may  be  such  as  to  show  clearly  that  no  per- 
manent annexation  was  intended.  If  so,  they  remain^ 
personal  property.  Thus  where  the  contractors  by 
whom  a  railroad  was  built  laid  down  side  tracks,  fas- 
tened to  the  main  track  by  frogs,  and  used  in  transport- 
ing gravel,  and  left  such  tracks  in  place  on  the  request 
of  the  president  of  the  road,  as  a  matter  of  accom- 

^  Potter  V.  Cromwell,  40  N.  Y.  287;  100  Am.  Dec.  485;  McKim  v.  Mason, 
3  MJ.  Ch.  186;  Pierce  r.  George,  11  Am.  Rep.  310;  108  Mass.  78;  Voorhees  v. 
McGinnis,  48  N.  Y.  478;  Richardson  v.  Copeland,  6  Graj%  530;  GO  Am.  Dec. 
424;  Tcaff  r.  Hewitt,  1  Ohio  St.  530;  59  Am.  Dec.  G34;  Stockwell  v.  Camp- 
bell, 12  Am.  Rep.  393;  39  Conn.  362;  Alvoril  C.  M.  Co.  v.  Gleason,  36  Conn.  86; 
Capeu  V.  Peckham,  35  Conn.  88. 

••*  Teaff  r.  Howett,  1  Ohio  St.  530;  59  Am.  Dec.  634.  Tho  rolling  stock  of  a 
railroad  mu.st,  in  Illinois,  be  sold  as  real  estate.  Palmer  v.  Forbes,  23  III.  301; 
Hunt  r.  Bullock,  23  111.  320;  Titus  v.  Mabee,  25  111.  257.  In  New  York  and 
Ohio  it  may  be  sold  as  personal  property.  Beanlslce  ?'.  Ontario  Bank,  31  Barb. 
619;  Stevens  v.  B.  &  N.  R.  R.  Co.,  31  Barb.  590;  Bement  v.  P.  &  M.  R.  R. 
Co.,  47  Barb.  104;  Pumdall  v.  Elwell,  11  Am.  Rep.  47;  52  N.  Y.  522;  Hoyle 
V.  P.  &  M.  Co.,  54  N.  Y.  314;  13  Am.  Rep.  595;  Coe  v.  R.  R.  Co.,  10  Ohio 
St.  372;  75  Am.  Dec.  518.  In  New  Hampshire  it  may  be  sold  as  personalty 
when  not  in  use.  Boston,  C  &  M.  R.  R.  v.  Gilmorc,  37  N.  H.  410;  72  Am. 
Dec.  3.3G.  In  several  cases  tiie  rolling  stock  of  railroads  has  been  regarded  as 
fixtures,  so  as  to  p.ass  to  a  mortgagee  of  tlio  realty.  Pennock  v.  Coe,  23  How. 
117;  Strickland?'.  Parker,  54  .Me.  263;  Minnesota  Co.  v.  St.  Paul  Co.,  2  Wall. 
G44;  PhillipH  v.  Winslow,  18  B.  Mon.  431;  68  Am.  Dec.  729.  Where  a  rail- 
roail  company  constructed  a  bridge,  being  a  part  of  its  road,  and  built  with 
stone  piers  and  al)utment3,  and  subsequently  abandoned  tho  road,  it  was  hchl 
that  the  piers  and  abutments  did  not  pass  to  tho  owner  of  tho  land.  Wagner 
r.  C.  &  T.  R.  It.  Co.,  10  Am.  Rep.  770;  22  Ohio  St.  563;  Corwin  r.  Cowan, 
12  Ohio  St.  629;  Northern  C.  R.  W.  Co.  v.  Canton  Co.,  30  Md.  347. 


§m        PERSONAL  TROrERTY  SURTECT  TO  EXECUTION.         206 

moilation,  on  his  assurance  tluit  tlio  materials  would 
4tlieroat'ter  be  ilelivered  to  them  Tree  of  expense,  such 
traeks  were  held  to  be  subject  to  execution  as  the  per- 
sonal property  of  the  contractors,  on  the  ground  that 
they  "were  laid  entirely  for  temporary  and  not  perma- 
nent purp(^ses,"  were  not  designed  for  use  in  any  par- 
•  tiiular  locality,  and  were  "a  part  of  the  moans  used  in 
ct)nstructing  a  road,  hut  ai"o  not  a  part  of  the  structure, 
and  because"  it  might  as  well  be  contended  that  the 
scaffolding,  ladders,  and  appliances,  used  in  constructing, 
which  a  mechanic  temporarily  leaves  about  a  newly 
thiished  house,  become  the  property  of  the  house- 
holder, so  as  to  pass  as  fixtures  upon  his  conveyance 
of  the  real  estate.^  Even  with  the  tests  here  pre- 
scribed, it  must  be  very  dlflicult  for  an  officer  or  cred- 
itor to  determine  what  may  be  seized  as  personal  estate. 
In  fact,  the  judges,  with  all  their  o|)portunity  for 
mature  deliberation,  and  all  their  skill  in  precision  and 
exactness  of  expression,  have  not  yet  been  able  to  make 
the  law  of  fixtures  harmonious  or  well  understood.  It 
would,  therefore,  be  marvelous  if  the  ministerial  officers 
of  the  court,  acting  in  the  haste  of  pressing  emergen- 
cies, did  not  often  err  in  attempting  to  conform  to  this 
law.  Even  the  term  "fixtures"  is  popularly  employed 
with  diverse  significations, —  sometimes  to  designate 
a  chattel  so  attached  to  the  realty  that  it  cannot 
be  removed,  and  sometimes  to  designate  a  chattel 
so  attached  that  it  can  be  removed.  But  in  the  vast 
majority  of  cases  in  which  the  law  of  fixtures  is  in- 
volved, the  alleged  fixture  has  been  affixed  by  the 
lessee.  To  determine  whether  a  chattel  affixed  by  the 
lessee  can  be  seized  on  execution,  we  have  only  to  as- 

»  Fifieia  V.  Mo.  C.  R.  R.,  C2  Mo.  81. 


267  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION,        §  lU 

certain  whether  the  lessee  can  lawfully  remove  it.  For 
whatever  rights  and  interests  the  lessee  has  are  sub- 
ject  to  execution  against  him.  The  law  of  fixtures  has 
been  gradualh'  modiiied  in  favor  of  lessees,  in  order 
that  trade  and  manufactures  might  be  encouraged. 
"Things  set  up  by  a  lessee  during  his  tenancy  for 
the  purposes  of  his  trade"  remain  personal  property/  • 
Tenants  occupying  property  for  the  purposes  of  agricul- 
ture were  less  favored  than  occupants  for  the  purposes 
of  trade.^  The  tendency  of  the  more  recent  decisions  is 
in  favor  of  putting  agricultural  and  other  tenants  upon 
an  equality,  in  this  respect,  with  tenants  for  the  purposes 
of  trad:;  and  of  determining  the  character  of  alleged 
fixtures  by  considering  their  nature,  and  the  nature  and 
intent  of  their  annexation,'  and  the  injury  which  would 
be  dcMie  to  the  freehold  by  their  removal,  rather  than 
by  considering  the  business  in  aid  of  which  they  have 
been  annexed.*  Domestic  and  ornamental  fixtures, 
being  such  as  are  erected  or  affixed  by  the  tenant  for 
his  convenience  or  that  of  his  family,  or  for  the  purpose 
of  gratifying  a  taste  for  the  beautiful,  retain  their  char- 
acter of  personal  property,  unless  their  removal  would 
occasion  some  material  injury  to  the  freehold.  Among 
the  domestic  and  ornamental  fixtures  which  so  retain 
their  character  as  personalty  are  "  all  fixtures  put  up  as 
furniture,  such  as  hangings,  tapestry,  beds  fastened  to 

'  Hill  on  Fixtures,  sec.  17;  Pillow  v.  Love,  5  Hayw.  100;  Lam.ar  v.  Miles, 
4  Watts,  330;  llayiiiond  v.  White,  7  Cow.  319;  Heermance  v.  Veruoy,  6  Johns. 
5;  Rcynolda  v.  Sliulcr,  5  Cow.  323. 

»  Elwcs  V.  Mawe,  3  East,  38. 

»  Meigs's  Ai)i.eal,  1  Am.  Rep.  372;  62  Pa.  St.  28. 

♦Dubois  V.  Kelly,  10  Barb.  490;  Van  Ness  r.  Packard,  2  Pet.  137;  Hark- 
CCH8  V.  Sears,  20  Ala.  493;  G2  Am.  Dec.  742;  Whitney  r.  Brastow,  4  Pick.  310; 
Holmes  T'.  Tremper,  20  .Johns.  29;  11  Am.  Dec.  338;  Rex  v.  Otley,  1  Barn.  A. 
A.1..1.  101;  Wo„.l  r.  liewett,  8  Q.  B.  913;  10  Jur.  390;  15  L.  J.  Q.  B.  247; 
Maat  V.  Collins,  10  Jur.  390;  13  L.  J.  Q.  B.  248. 


§114        PERSONAL  rROPERTY   SUBJECT  TO  EXECUTION.  2GS 

the  coiliui^,  l)liiuls,  tliimnoy-glasses,  cliuuiuy-jiieces, 
(liook-cast's,  cDtloo-mills,  looking-glasses,  pier-glasses, 
pictures,  shelves,  cabinets,  cbiinney  backs,  cupboards, 
ilesks  anil  tlrawers,  tVanus,  gas-pipes,  graters,  iron  chests 
and  iron  ovens,  iron  safes,  jacks,  lamps,  pumps,  ranges, 
sinks,  turret-clocks,  wainscots  fixed  by  screws,  window- 
Siishes  not  Ix-ing  bcdiKd  into  I'rames  but  merely  fastened 
by  laths  and  nailed  across  frames  and  curtains."' 

It  nmst  be  remembered  that  the  tenant's  right  to  his 
fixtures  may  be  forfeited  by  his  failure  to  remove  them 
, while  he  is  entitled  to  do  so.  When  he  ceases  to  be  a 
tenant,  he  ceases,  in  the  absence  of  any  agreement  pre- 
serving his  rights,  to  have  any  interest  in  the  fixtures, 
except  when  his  lease  was,  without  his  fault,  terminated 
by  the  happening  of  some  uncertain  contingency.  Or- 
dinarily, he  must  remove  the  fixtures  during  Ids  term. 
The  period  within  which  he  may  make  the  removal  may 
be  prematurely  terminated  by  the  forfeiture  of  his  lease; 
or  it  may  be  prolonged  by  the  extension  of  his  lease,  or 
by  stipulation  with  his  landlord.  But  where  no  special 
stipulations  to  the  contrary  have  been  made,  and  the 
term  is  for  a  certain  and  definite  period,  a  lessee  may 
remove  his  fixtures  while  he  is  stiJl  entitled  to  regard 

*  Crocker  on  SheriflFs,  sec.  4G1;  Amos  ami  Fcrard  on  Fixtures,  64-93;  Hill 
on  Fixtures,  sees.  29-39;  2  Smith's  Lead.  Cas.  242.  See  also,  as  to  domes- 
tic and  ornamental  fixtures:  for  window-sasbes.  Rex  v.  Hedges,  1  Lcacli  C.  C. 
201;  2  Eadt  P.  C.  590,  note;  for  pumps,  MoCracken  v.  Hall,  7  Ind.  30;  Orymes 
r.  Riweren,  4  Moore  &  P.  143;  G  Bing.  437;  for  cornices,  Avery  r.  Cheslin,  5 
Nev.  &  M.  372;  3  Ad.  &  E.  75;  1  Har.  &  W.  2S3;  for  chimnoy-pieces,  Leach  v. 
Tlioi.ias,  7  Car.  &  P.  32S;  Bishop  v.  Elliott,  11  Ex.  113;  24  L.  J.  Ex.  229;  for 
8how-ca.4e  and  drawers.  Cross  v.  Marston,  17  Vt.  533;  44  Am.  Dec.  353; 
gas-fixturc-s  and  setting-stools,  Lawrence  r.  Kemp,  1  Ihicr,  3t;3;  Vaughen  v. 
Haldeman,  3.3  Pa.  St.  522;  75  Am.  Dec.  622;  cliiinncy-pieccs,  wainscots,  and 
beds  fastened  to  ceiling.  Ex  parte  Quincy,  1  Atk.  477;  hangings  and  looking- 
glasses,  Beck  r.  Relx)W,  1  P.  Wms.  94;  stoves  and  grates  fixed  into  the  chim- 
ney, and  a  cuplxjard  standing  on  the  ground  supported  by  holdfasts.  King  v. 
St.  Dustana,  4  liarn.  &  C.  686;  book -case  screwed  to  the  wall,  Birch  v.  Daw- 
son, 2  Ad.  &  £.  37. 


269  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  115 

himself  as  a  tenant,  and  he  cannot  remove  them  after- 
wards/ By  his  failure  to  exercise  his  privilege  of  re- 
moval within  the  time  prescribed  by  law,  his  fixtures 
become  a  portion  of  the  real  property  of  the  landlord, 
and  of  course  are  no  longer  subject  to  execution 
ao^ainst  their  oriqinal  owner. 

OF     THE    ESTATES    AND     INTERESTS    IN    PERSONAL     PROPERTY 
SUBJECT    TO    EXECUTION. 

§  115.  The  Real  and  not  the  Apparent  Interest  of 
the  Debtor  may  be  Taken.  —  In  treating  of  the  lien  of 

judgments,  we  have,  in  another  work,  said:  "Whenever 
a  lien  attaches  to  an}^  parcel  of  property,  it  becomes  a 
charge  on  the  precise  interest  which  the  judgment 
debtor  has,  and  no  other.  The  apparent  interest  of  the 
debtor  can  neither  extend  nor  restrict  the  operation  of 
the  lien,  so  that  it  shall  encumber  any  greater  or  less 
interest  than  the  debtor  in  fact  possesses."^  This  is 
equally  true  of  the  lien  of  an  execution,  and  of  the  in- 
terest acquired  by  the  officer  by  reason  of  his  lev}'.  A 
transfer  ma}-  be  actually  or  constructively  fraudulent, 
and  may  on  that  -account  be  void  as  against  creditors, 
while  it  is  valid  against  the  transferrer;  or  it  may,  in 

'  Wccton  V.  Woodcock,  7  Mees.  &  W.  14;  Dudley  v.  Warde,  Amb.  IIH; 
Pvoffey  V.  Henderson,  17  Q.  B.  573;  IG  Jur.  84;  21  L.  J.  Q.  B.  49;  Davis  v. 
Moss,  38  Pa.  St.  240;  Leader  v.  Homewood,  5  Com.  B.,  N.  S.,  540;  4  Jur., 
N.  S.,10CJ;  27  L.  J.  C.  P.  310;  Heap  v.  Barton,  12  Com.  B.  274;  16  Jur.  891; 
21  L.  J.  C.  P.  153;  Storer  v.  Hunter,  3  Bam.  &  C.  .SOS;  Leo  v.  Risdon,  7 
Taunt.  188;  Overton  v.  Williston,  31  Pa.  St.  155;  Lyde  v.  Russell,  1  Barn.  & 
Adol.  394;  White  v.  Amdt,  1  Whart.  91;  SUto  v.  Elliott,  11  N.  H.  540;  Whip- 
ley  V.  Dewey,  8  Cal.  30;  Merrit  v.  Judd,  14  Cal.  59;  Fitzherbert  v.  Shaw,  1 
H.  Black.  2.^8;  King  v.  Wilcomb,  7  liarb.  203;  Amos  and  Ferard  on  Fixtures, 
94,  and  following.  The  opining  of  Lord  Kenyon  in  Penton  v.  Ilobart,  2  East, 
88,  that  the  lessee  could  lawfully  remove  his  fixtures  u-hile  he  remained  in  posses- 
tion,  haj),  as  will  be  seen  from  examining  the  above  authorities,  ceased  to  be 
regarded  a.s  law. 

^  Freeman  on  Judgments,  sees.  350,  357;  Walton  v.  Hargrovos,  42  Miss.  18; 
97  Am.  Dec.  429. 


§115        PERSONAL  rROPERTY  SUB.TECT  TO  EXECUTION.  270 

conio  states,  bo  void  as  aiiaiiitit  civditors  for  want  of 
(lolivorv.  In  those  cases,  it  is  evident  that  an  execu- 
tion may  vcixrh  and  t  ransfer  a  greater  interest  than  tliat 
held  l»y  the  defendant.  With  tliesc  cx('eptions,  it  is 
heheved  that  no  inten^st  is  subject  to  excH'ution  l)eyond 
what  the  di'fendant  actually  owns,  althouijfh  hisa})parent 
may  bo  much  greater  than  his  real  ownership.*  Hence, 
M'liere  a  debtor  is  trarnisheil,  he  must  be  released  on 
showing  that,  before  the  service  of  the  writ,  his  creditor 
had  assigned  the  debt,"  or  that,  by  agreement,  the  debt 
was  to  be  paid  to  the  creditor's  creditor."  It  is  not 
essential  that  the  debtor  should  be  notified  of  the  as- 
signment prior  to  the  levy/  A  draft  takes  precedence 
over  a  subsequent  attachment,  though  not  presented 
until  after  the  writ  is  levied.^  On  the  other  hand,  it  is 
equally  well  settled  that  the  real  interest  of  a  defendant 
is  subject  to  execution,  though  he  may  not  a|)pear  to 
have  any  interest;  or,  more  properly  .speaking,  thougli 
the  evidence  of  his  title  may  be  concealed.  Hence,  in 
order  to  subject  real  estate  to  execution,  it  is  not  neces- 
sary' to  show  that  the  defendant's  evidence  of  title  is 
on  record.  It  is  wholly  immaterial  whether  the  in- 
terest of  the  defendant  appears  from  the  records  or 
not.°  "What  is  here  said  about  the  real  interest  of  the 
defendant  being  subject  to  execution,  rather  than  the 

>  Whitworth  v.  Oaugain,  V.i  L.  .1.,  N.  S.,  Ch.  288;  3  Hare,  416. 

'  Adams  v.  Robinson,  1  Pick.  401;  Weed  v.  Juwett,  2  Met.  608;  37  Am. 
Dec.  115;  Littletield  r.  Smith,  17  Me.  327;  King  v.  Murpliy,  1  Stewt.  228. 
See  §  170. 

»  Lovely  r.  Caldwell,  4  Ala.  CS4;  Black  v.  Paul,  10  Mo.  103;  45  Am.  Dec. 
353. 

«  Pellman  r.  Hart,  1   Pa.  St.  203. 

*  Xesmith  r.  Drum,  8  Watts  &  S.  9;  42  Am.  Dec.  200. 

•  Vance  r.  McNairy,  3  Yerg.  171;  24  Am.  Dec.  553;  Rcadyr.  Bragg,  1  Head, 
511;  .Shields  r.  Mitchell,  10  Yerg.  1;  L;ithrop  r.  Brown,  23  Iowa,  40;  Niantic 
Bank  r.  Dcnni«,  37  III.  3S1;  Ritcher  r.  Selin,  8  Serg.  &  K.  425. 


271  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  IIG 

apparent  interest,  meets  with  an  apparent  exception 
through  tije  operation  of  the  laws  for  the  registration 
of  instruments  affecting  the  title  to  real  estate.  Under 
those  laws,  a  purchaser  in  good  faith,  who  records  his 
conveyance,  is  entitled  to  precedence  over  a  prior  con- 
veyance or  encumbrance  of  which  he  had  no  notice, 
actual  or  constructive.  A  purchaser  at  execution  sale 
may  also  be  a  purchaser  in  good  faith,  and  may  there- 
fore obtain  a  greater  or  better  title  tjian  the  defendant 
in  fact  hcld.^  This  is  because  of  the  effect  of  the  resfis- 
try  laws,  and  not  because  any  greater  interest  than  that 
held  by  defendant  was  subject  to  execution;  for  until 
the  moment  when  the  purchaser  in  good  faith  pays  his 
money,  notice  may  be  given  of  the  prior  unregistered 
conveyance  or  encumbrance,  and  the  levy  and  sale  thus 
made  ineffective  as  against  it. 

§116.  Equitable  Interests. — By  the  common  law, 
an  equitable  interest  in  personal  property  could  not  be 
seized  and  sold  under  a  writ  of  fieri  facias.  Hence, 
wherever  the  common-law  rule  has  not  been  chanixed 
by  statute,  the  sheriff  is  not  authorized  to  seize  and 
sell  any  chattels,  unless  the  defendant  in  execution  has 
the  legal  as  well  as  the  equitable  title  thereto."  "It 
was  a  principle  of  the  common  law,  steadily  maintained, 
that  an  equitaljle  interest  in  chattels  could  not  be  sold 
under  execution.  A  sheriff  must  actually  seize  the 
property  on  a.  fi£n  facias  before  he  can  scll."^     "I  do 

»  See  pout,  §  .330. 

»  Boyc'j  V.  Siiiitli.  10  Mo.  317;  McLcary  r.  Snider,  1  West.  L.  M.  270;  Mc- 
Nairy  v.  Easllan.l,  10  Ycrg.  310;  Lystcr  v.  Dolknd,  1  Ves.  Jr.  4.T1;  3  Bro.  C. 
C.  478;  Wilson  r.  Carver,  4  llayw.  90;  Ba.Uam  v.  Tucker,  1  Pick.  3U'J;  11 
A.n.  Doc.  '2if2;  Beaton  v.  Pope,  5  Huinpii.  39'J;  Dargan  r.  Riclianl.sou,  DutUey 
(S.  C.»,  Ol';  .Martin  v.  .Jewell.  37  M.l.  530;  Brown  r.  Woo.l,  0  Ricli.  Kq.  l.")5; 
lUur.  Bvaii.  10  Ml.  400;  49  Am.  Dec.  170;  Wylio  r.  White,  10  Rieli.  Eq. 
eOl;  Slitit;  r.  llar.l..r,  1  Yerg.  3;  24  Am.  Deo.  427;  RoaJa  v.  Syuuncs,  1  Ohio, 
281;  13  Am.  Dec.  021. 

»  YcUlcU  V.  Baruea,  15  Mo.  434. 


§1U>        PERSONAL  TROrERTY  SUBJECT  TO  EXECUTION.  272 

not  know  (A'  any  case  in  which  a  court  of  equity  has 
oonsitlorocl  an  execution  at  law  as  binding  an  equitable 
right.  The  idea  i.s  altogether  inadmissible."^  When 
an  assignment  is  made  to  certain  persons,  for  the  pur- 
pose of  enabling  them  to  sell  the  property  assigned, 
and  with  the  proceeds  to  pay  the  assignor's  liabilities, 
and  reserving  to  the  assignor  such  property  as  may 
remain  after  the  debts  have  all  been  paid,  he  has  no 
interest  subject  to  execution."  In  Missouri  it  has 
been  held  that  one  who  was  the  owner  of  an  equitable 
interest  in  stocks,  and  who  also  had  the  right  to  retain 
possession  for  a  definite  period  of  time,  had  an  interest 
in  such  stocks  subject  to  execution.^  In  some  of  the 
states  the  common-law  rule  has  been  abrogated,  and 
has  been  substituted  by  statutory  provisions  subjecting 
equitable  as  well  as  legal  interests  to  execution  and 
forced  sale  at  law.*  The  common-law  rule  was  sus- 
tained by  the  theory  that  at  law  only  legal  interests 
could  be  recosfuized  and  enforced.  It  was  not  founded 
on  any  tenderness  for  equitable  titles,  but  rather  upon 
a  desire  to  ignore  them  altogether.  By  proceedings 
in  equity,  equitable  interests  could  always  be  made  to 
contribute  to  the  satisfaction  of  a  judgment  against  the 
owner.^     If  such  interests  are  to  be  subjected  to  forced 

»  Hendricks  r.  Robinson,  2  Johns.  Ch.  312. 

»  Sprinkle  v.  Martin,  G6  N.  C.  55;  McKeithan  v.  Walker,  66  N.  C.  95; 
Wilkes  V.  Ferris,  5  Johns.  345;  4  Am.  Dec.  3G4;  Scott  v.  Scliolay,  8  East,  407; 
Biscoe  V.  Royston,  15  Ark.  5(J8;  Pope  r.  Boyd,  22  Ark.  535;  Brown  v.  Graves, 
4  Hawks,  342;  Metcalf  v.  Sclioley,  2  Bos.  &  P.  401;  Williamson  v.  Clark,  2 
Miles,  153. 

»  Foster  r.  Potter.  37  Mo.  525. 

*  Middletowu  Savings  Bank  r.  Jarvis,  33  Conn.  372;  Eastland  v.  Jordan,  3 
Bibb,  180;  Samuel  r.  Salter,  3  Met.  (Ky.)  259. 

'  Pendleton  v.  Perkins,  40  Mo.  505;  Edmonston  v.  Hyde.  1  Paige,  6.37; 
TarWll  r.  Griggs,  3  Paige,  207;  23  Am.  Dec.  790;  Hadden  r.  Spailer,  20  Jolins. 
554;  Williams  r.  Hubbard,  Watkius'  Ch.  28;  Bigelow  v.  Congregational  Soci- 
ety, 11  Vt.  283. 


273  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §  117 

sale,  it  is  better  to  allow  them  to  be  taken  under  ^ert 
facias  than  to  compel  the  creditor  to  resort  to  a  sepa- 
rate suit;  for  the  suit,  after  subjecting  both  parties  to» 
delay  and  expense,  without  any  conipensatoiy  advan- 
tages, does  precisely  what  might  long  before  have  been 
done  under  a  fieri  facias. 

§  117.  Mortgagor's  Interest. — The  equity  of  re- 
demption held  by  a  mortgagor  of  chattels  is  clearly 
an  equitable  interest,  and  according  to  the  rules  stated 
in  the  preceding  section,  would  not  be  subject  to  execu- 
tion. But  in  many  of  the  United  States  the  courts, 
have  proceeded  upon  the  theory  that,  except  as  be- 
tween the  mortgager  and  the  mortgagee,  the  former, 
while  by  the  terms  of  the  mortgage  he  is  entitled  to 
retain  possession  for  a  definite  time,  must  be  treated  as, 
the  real  owner  of  the  property  mortgaged.  They  have 
therefore  held  that  the  mortgagor's  interest  in  the  chat- 
tels, while  he  has  the  right  to  retain  possession,  may  be 
sold  under  execution.^  "A  mortgagor  of  chattels  has  an 
interest  in  the  mortgaged  property  until  it  has  been 
barred  or  foreclosed,  which  may  be  seized,  taken,  and 
disposed  of  by  his  creditors.  But  this  is  such  an  interest, 
that  it  must  l:)e  taken  and  treated  as  subservient  to  the 

*  Hunter  v.  Hunter,  Walk.  194;  McWIiorter  v.  Huling,  .3  Dana,  349;  P^an- 
dall  V.  Cook,  17  Wend.  53;  Ptcilman  v.  Hendricks,  1  Sand.  32;  Waters  v.  Stew- 
art, 1  Caines  Cas.  47;  Hobart  v.  Frisbie,  5  Conn.  592;  McGregor  v.  Hall,  3 
Stew.  &  P.  .397;  Purnell  v.  Hogan,  5  Stew.  &  P.  192;  Ford  v.  Pliilpot,  5  Uar. 
&  J.  312;  Fugaton  Clarkson,  2  B.  Mon.  41;  3G  Am.  Dec.  589;  Mcrritt  v.  Ndes, 
25  HI.  283;  Collins  v.  (Jilwon,  5  Vt.  243;  fJarro  v.  Thompson,  7  Watta,  416; 
Schraderr.  Wolfin,  21  Ind.  238;  Wriglit  v.  Henderson,  12  Tex.  43;  Van  Ness 
V.  Hyatt,  13  Put.  294;  Bailey  v.  Burton,  8  Wend.  3.39,  348;  Hall  r.  Sampson, 
35  N.  Y.  274;  91  Am.  Doc.  5G;  Antliony  v.  Shaw,  7  II.  I.  275;  iMercer  v.  Tins- 
ley,  14  B.  Mon.  274;  Mattison  r.  Baucus,  1  N.  Y.  295;  Wootton  r.  Wiieeler, 
22  Tex.  338;  Saxton  v.  William.s,  15  Wia.  292;  O'Neal  r.  Wilson,  21  Ala.  288; 
Moore  v.  Murdock,  2G  Cal.  627;  Ilaysor  v.  Reed,  55  Tex.  20G;  Lyman  ?•.  Rowo, 
CG  How.  Pr.  481. 

Vol.  I.  - 18 


§117        PERSONAL  TROrERTY   SURTECT  TO  EXECUTION.  274 

paraiiiDUiit  interest  of  the  iiiortLjugoo.  Tlir  latter  has  a 
vested  ri'jflit  to  require  that  the  jn-operty  ho  converted 
into  a  satisfaetion  »»!*  his  (Kinaiul :  aiul  suhjcct  to  this 
ri«::lit,  tlie  crethtor  o\'  the  mortgagor  may  attaeh  or  seize 
tlie  property,  lie  cannot,  however,  depiivc  the  mort- 
«»-a«''ee  oi'  the  possession  of  his  security  if  he  has  such 
possession,  imr  can  lie  assume  control  and  dispose  of  tlie 
property  regartiless  of  the  prior  right  of  the  mortgagee."  ^ 
If  the  officer  levies  upon  the  oithr  property  mortgaged, 
instead  of  upon  the  interest  of  the  mortgagor  therein, 
and  assumes  to  control  and  dispose  of  the  property 
absolutely,  the  writ  in  some  of  the  states  furnishes  no 
justification  for  his  action."  But  in  other  states,,  if  the 
defendant  is  in  possession  of  the  property,  and  entitled 
to  remain  in  possession  for  some  definite  period,  the 
sheriff  may  lawfully  seize  and  sell  the  property  without 
taking  any  notice  of  the  mortgagee's  interest.^  It 
seems  to  us,  however,  that  the  general  rule  that  an 
officer  who,  having  notice  of  defendant's  special  inter- 
est, assumes  to  sell  a  greater  interest  in  chattels  than 
belongs  to  defendant  in  execution  is  liable  for  conver- 
sion,* ought  to  operate  in  favor  of  mortgagees,^  But 
when  the  mortgagor  has  no  right  to  retain  possession 
of  the  property  except  by  the  permission  of  tlie  mort- 
gagee, lie  certainly  has  little  claim  to  be  regarded  as 

»  Cotton  r.  Marsh,  .3  Wis.  241 ;  Cottou  r.  Watkins,  G  Wis.  C29. 

'  Fridbie  v.  Laagwurtliy,  11  Wis.  375;  McCoucghy  v.  McCaw,  31  Ala.  451; 
Fox  r.  Croaau,  47  N.  J.  L.  493;  54  Am.  Rep.  190. 

»  Hall  r.  Carnley,  11  N.  Y.  501;  17  X.  Y.  202;  Goulet  r.  Asselcr,  22  N.  Y. 
225;  Manning  v.  Moaaghan,  28  N.  Y.  5S.j;  Fairbanks  v.  Phelps,  22  Pick.  535; 
Uanull  r.  Gillespie,  4S  N.  Y.  55C. 

*  Dean  r.  Wliittaker,  1  Car.  &  P.  347;  Wheeler  v.  McFarland,  10  Wend. 
318. 

*  An  officer  who  under  an  execution  against  a  co-tenant  adbuines  to  Bell  tho 
entire  cbattcl.i  i.s  guilty  of  a  couvcrsiou.  Frceuiau  un  Cutcuancy  and  Parti- 
tion, sees.  214,.  310. 


275  PERSONAL  PROPERTY   SUBJECT  TO  EXECUTION.        §117 

the  owner  thereof.  As  he  has  no  right  to  the  posses- 
sion, it  is  difficult  to  understand  how  his  creditors  can 
obtain  such  right  by  virtue  of  process  against  him. 
His  interest  in  such  case  is  a  mere  equity;  and  even 
the  American  courts  do  not  regard  it  as  subject  to  exe- 
cution, except  when  rendered  so  by  the  provisions  of 
some  statute.  Hence,  if  the  morts^asjee  is  entitled  to 
the  possession  of  the  property,  the  officer  has  no  right 
to  seize  it,  although  it  is  found  in  the  possession  of  the 
mortgagor,  such  possession  being  permissive  merely, 
and  not  a  matter  of  right.^  If  the  mortgage  stipulates 
that  the  mortgagor  may  retain  possession,  with  a  con- 
dition that  if  any  of  the  property  be  levied  upon  it  shall 
be  lawful  for  the  mortgagee  to  take  immediate  posses- 
sion, an  action  may  be  maintained  by  the  mortgagee 
against  an  officer  who  has  seized  and  carried  away  the 
property  under  process  against  the  mortgagor."  When 
the  mortgage  is  made  to  secure  a  debt  already  due,^  or 
when,  having  been  made  to  secure  a  debt  to  become 
due  in  a  specified  time,  default  is  thereafter  made  in  the 
payment,  the  mortgagor  has  no  right  to  retain  posses- 
sion, and  no  interest  subject  to  execution.^     It  must  be 

*  Spriggs  V.  Camp.  2  Spears,  181;  Yeldell  v.  Barnes,  15  Mo.  443;  King  v. 
Bailey,  8  Mo.  332;  Mattison  v.  Baucus,  1  N.  Y.  295;  Perkins  v.  MayficUl,  5 
Port.  182;  Palmer  v.  Forbes,  23  111.  301;  Eggleston  v.  Miimly,  4  Mich.  295; 
Farrell  r.  HiMrcth,  38  Barb.  178;  Holbrook  v.  Baker.  5  Greeul.  265;  17  Am. 
Dec.  23G;  Campbell  v.  Leonard,  11  Iowa,  489;  Paul  r.  Hayford,  22  Mc.  234; 
Marsh  v.  Lawrence,  4  Cow.  407;  Giilcn  v.  Brown,  22  N.  Y.  37;  Tauuahil  r. 
Tuttle,  3  Mich.  104;  Gl  Am.  Dec.  480. 

•I  Welch  r.  Whittemore.  25  Me.  86. 

»  Bakes  r.  Ripp.  1  Abb.  Dec.  78;  3  Keyes,  210. 

♦Thompson  r.  TliomUjn,  21  Ala.  808;  liaxtor  r.  Gilbert,  12  Abb.  Pr.  97; 
Stewart  V.  Slater.  0  Dtn.r,  83;  Chaniplin  r.  Johnson,  39  Barb.  G0(!;  Ford  r. 
Williams,  13  N.  Y.  577;  G7  Am.  Dec.  83;  Tannahil  v.  Tuttle,  3  Mich.  104; 
61  Am.  Dec.  480;  Porter  r.  Parmly,  34  N.  Y.  398;  43  How.  Pr.  445;  Pcckin- 
taugh  V.  Quilliu,  12  Neb.  58G;  Hr.wland  v.  Willett,  3  Sand.  007;  Morcor  t". 
rinsley,  14 'B.  Mon.  272;  Farmors'  Bank  v.  Cowan,  2  K<yes,  217;  Bacon  v. 
Kiinmcll,  14  Mich.  201.     But  it  in  now  imderstood  that  tho  statute  iu  Michigan 


§117        PERSONAL  TROrERTY  SURTECT  TO  EXECUTION.  276 

aclniittocl  tliat  tlu>  Aiiu'rican  law  (IttrnniniiiL;'  wlicthor 
an  execution  tan  1k^  levied  upon  inort^au'etl  eliattels  is 
unsettleJ,  and  that  diOerent  perstuis  arc  likely  to  dis- 
arrree  as  to  the  result  of  the  reported  cases.  ]\tr.  Ilil- 
liard  >>ays:  "The  weight  of  authority  would  setMn  to  bo 
against  the  right  of  taking  mortgaged  property  in  exe- 
cution." *  ^Ir.  Sumner,  in  his  note  to  Lystcr  v.  Dol- 
land,  1  Ves.  Jr.  4ul,  shows  that,  "except  as  against 
the  mortgagee,  the  mortgagor  is  regarded  as  the  real 
owner  of  the  property  mortgaged,  and  in  the  United 
States  the  rule  has  very  extensively  prevailed  that  an 
equity  of  redemption  was  vendible  as  real  property  on 
an  execution  at  law";  and  by  his  citations  shows  a  de- 
cided majority  of  the  cases  to  be  in  favor  of  the  prac- 
tice of  seizing  equities  of  redemption  under  fieri  facias. 
But  while  there  are  a  few  cases  in  which  an  equity  of 
r<:demption  in  chattels  is  stated,  without  c^ualification, 
to  be  subject  to  execution,"  and  while  cases  somcwliat 
more  numerous  than  those  just  alluded  to  maintain  the 
broad  proposition  that  an  equity  of  redemption  in  chat- 
tels is  never  subject  to  execution,^  we  think  the  result 
of  a  considerable  majority  of  the  American  decisions  is 
this :  that  a  mere  equity  of  redemption  is  not  of  itself 
subject  to  execution;  but  when  such  equity  is  joined 
with  the  right  to  remain  for  a  definite  time  in  posses- 

aatborizes  the  levy  upon  goods  in  the  mortgagor's  possession  at  any  time  Ijefore 
the  mortgage  is  actually  foreclosed.  Gary  v.  Hewitt,  2G  Mich.  228.  The  same 
rule  prevaiLs  in  Rho<lc  Island.     Arnold  r.  Chapman,  13  II.  I.  58G. 

>  2  llilliard  on  Mortgages,  2d  ed.,  428. 

»  Doughtcn  r.  Gray,  2  Stock.  .32.3. 

»  Badlam  v.  Tucker,  1  Tick.  399;  11  Am.  Dec.  202;  Ro.se  v.  Bevan,  10  Md. 
4G6;  C'J  Am.  Dec.  170;  Haven  v.  Low,  2  N.  H.  13;  9  Am.  Dec.  25;  Myers  v. 
Amey,  21  Md.  .302;  Lyon  v.  Coburn,  1  Cush.  278;  Wliitcsides  v.  Williams,  2 
Dtv.  &  B.  E<i.  153;  Lambr.  Johnson,  10  Cudh.  120;  Hawkins  ?•.  May,  12  Ala. 
C73;  Thomhill  v.  Oilmcr,  4  Smedes  &  M.  103;  Harbison  v.  Harrell,  19  Ala. 
753;  Commercial  Bank  v.  Waters,  10  Smedes  &,  M.  559. 


277  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §  117 

sion  of  the  property  mortgaged,  the  mortgagor  has  an 
interest  which  may  be  seized  and  sold  under  an  execu- 
tion at  Law. 

With  respect  to  the  authority  of  an  officer  to  invade 
the  rightful  possession  of  the  mortgagee,  for  the  pur- 
pose of  levying  on  the  mortgagor's  equity  of  redemp- 
tion, where  he  yet  retains  such  equity,  the  courts  are 
not  entirely  in  harmony.  On  the  one  hand,  it  is  insisted 
that  in  those  states  where  such  equity  is  subject  to 
execution,  the  mortgage  is  accepted  with  a  tacit  agree- 
ment that  it  may  be  so  subjected,  and  that  such  steps 
may  be  taken  as  are  necessary  thereto,  and  that  these 
necessarily  include  the  right  to  seize  the  property  even 
while  in  the  possession  of  the  mortgagee,  and  to  retain 
such  possession  so  as  to  be  enabled  to  have  the  prop- 
erty present  at  the  sale;^  and  the  case  is  likened  to 
that  of  an  execution  against  one  of  several  partners, 
in  which  it  is  generally  conceded  that  the  officer  may 
seize  the  property  and  sell  the  partner's  interest  therein, 
though  the  title  conveyed  is  nothing  beyond  what  may 
remain  after  the  settlement  of  the  affiiirs  of  the  part- 
nership. Where  the  law  requires  property  to  be  pres- 
ent at  the  time  of  tiie  sale,  it  seems  to  be  necessary  to 
concede  either  that  tlie  levying  officer  may  take  it  from 
the  possession  of  the  mortgagee,  or  else  that  while  in 
such  possession  it  is  not  subject  to  levy  and  sale  unless 
by  his  permission.  On  the  other  hand,  it  is  urged  that 
the  mortgagee,  Ijeing  in  possession  and  entitled  to  the 
possession  as  against  the  mortgagor,  no  creditor  of  the 
latter  can  a(M]|uire  any  right  which  his  debtor  has  not; 
that  MO  riglit  of  })ossession  can  be  acquired  by  levying 
a  writ   aj'ainst   one   wlio   is   without  sucli  rij^ht;   and 

'  lf;iokl<?m;ui  r.  (ioo.liiiari,  75  Iiid.  '201;  Loutbam  v.  Miller,  85  Iml.  101; 
Sparkii  V.  Cuui]jtou,  7U  lud.  3U3. 


§117        PERSONAL  TROrERTY   SUBJECT  TO  EXECUTION.         278 

lliially,  that  it  would  vi-iy  seriously  iin|)air  tlio  rijjjhts 
of  the  niortjj^aixoe,  if  tho  property  could  he  taken  from 
his  hands,  ior  an  indelinite  pi^riod,  in  oiiler  to  suhjeet 
to  exoeutioii  an  (.'(juity  of  icdcnintlon  whieh  luijj^ht  be 
of  no  value  whatsoever.  \n  some  of  the  states  an 
escape  from  the  dili'inma  is  affected  hy  liolding  that  a 
levy  and  sale  may  he  made,  in  such  eireumstances, 
without  taking  i>ossession  of  the  mortgaged  property.^ 
The  better  rule,  however,  as  we  have  ahead}'  indicated, 
is,  that  the  mortgagor  has  no  interest  subject  to  levy, 
unless  he  has,  in  addition  to  his  mere  equity  of  redemp- 
tion, the  right  to  remain  in  possession  of  the  property 
for  some  ascertainable,  definite  length  of  time. 

The  right  to  seize  mortgaged  chattels  under  execu- 
tion or  attachment,  and  the  mode  in  which  it  may  be 
pursued,  have  been  regulated  by  statute  in  many  of  the 
states.  Thus  sections  29G8  and  29G9  of  the  Civil  Code 
of  California  declare  that  "personal  j)roperty  mort- 
gaged may  be  taken  under  attachment  or  execution 
issued  at  the  suit  of  a  creditor  of  the  mort'j:ai2:or. 
Before  the  property  is  so  taken,  the  officer  must  pay 
or  tender  to  the  mortoanrce  the  amount  of  the  mort- 
gage  debt  and  interest,  or  must  deposit  the  amount 
thereof  with  the  county  clerk  or  treasurer,  payable  to 
the  order  of  the  inortcfaGjee."'^  In  the  absence  of  the 
payment  or  deposit  of  the  mortgage  debt,  the  seizure 
of  the  prcjperty  under  execution  is  without  justifica- 
tion;^ and  in  any  suit  for  seizing  such  property,  the 
measure  of  damages  under  the  above  sections  is  not 
the  value  of  the  property  taken,  but  the  entire  amount 

»  Fox  r.  Cronan,  47  N.  J.  L.  493;  54  Am.  Rep.  190;  Srodea  v.  Caven,  3 
Watt*,  258;  Welch  v.  Bell,  32  Pa.  St.  12;  Chicago  Lumber  Co.  v.  Fiahcr,  18 
Keb.  IVM. 

'  lieriion  r.  Nunan,  03  Cal.  5C>0. 

*  Meberin  r.  Oakis,  07  Cal.  59. 


279  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §  117 

of  the  mortgage  debt,  whether  in  excess  of  the  value 
of  the  property  or  not.^     In  several  other  states,  and 
in  some  of  the  territories,  statutes  have  been  enacted 
similar  to  that  of  California  in  respect  to  requirino-  the 
creditor  levying  a  writ  of  attachment  or  execution  on 
mortgaged  chattels  to  pay  or  tender  to  the  mortgagee 
the  amount  of  the  debt,  or   to  deposit  the    amount 
thereof,  payable  to  his  order,  with  some  officer  desig- 
nated in  the  act;'  while  in  some  of  the  statutes  pro- 
viding for  this  payment  or  deposit,  the  creditor  may 
be  excused  from  such  payment,  if  instead  of  seizing  the 
property  he  levies  on  the  mere  equity  of  redemption  in 
the  mode  designated  by  the  statute,'  in  which  case  the 
sale  does  not  affect  the  mortgagee's  rights,  and  the 
moneys  realized   must  be  applied  to  the  satisfaction 
of  the  judgment  and  costs.     When  the  creditor  pays 
the  mortgage  debt  before  making  the  levy,  the  pro- 
ceeds of  tlie  sale  are  first  applied  to  its  repayment,  and 
the  residue  only  is  credited  on  the  writ.     Other  stat- 
utes provide  generally  for  levies  on  equities  of  redemp- 
tion, without  first  exacting  payment  of  the  mortgage 
debt.*     In    Florida,    however,    the    purchaser    of'^the 
mortgaged  chattels  under  execution  must  give  security 
for  their  delivery  to  the  proper  officer  when  required 
to  satisfy  any  decree  of  foreclosure.     So  in  Kentucky, 

'  Wooil  r.  Franka,  5G  Cal.  217;  Rider  v.  Edgar,  54  Cal.  127. 

'Conip.  Laws  Arizona,  cd.  1877,  p.  G15,  sec.  5;  Laws  of  Colorado,  1879  p 
87,  sees.  17,  18;  Rev.  Co.le  Dakota,  1877,  sees.  1753-1755;  Rev.  Laws  Lla'ho 
J875,  p.  C02,  sees.  5,  6;  lU:v.  Stats.  Me.,  1871,  c.  81,  sees.  41-44;  Mont.  Sfcats.,' 
1881,  p.  4,  sec.  5;  Comp.  Laws  Nov.,  1873,  sec.  294;  Gen.  Laws  N  H  1878' 
c.  224,  sees.  17,  18.  •»  . 

»  Comp.  Laws  Arizona,  ed.  1877,  p.  615,  sec.  5. 

*Code  Ala.,  187(5,  sec.  3209;  Gen.  SUts.  Conn.,  1875,  p.  4G1,  sec.  .32;  Digest 
LawsFla.,  IHXI.  p.  622,  c.  102,  sees.  8-10;  Code  Ga.,  1882,  sec.  1907.  19GS- 
Comp.  I^ws  Mich.,  1871,  sec.  6097;  Gen.  Stats.  Minn.,  1S78,  c.  GG,  «ec.  im- 
Gen.  StatH.  R.  L.  1872,  c.  197,  sees.  4-8;  Rov.  Stats.  Tex..  1879,  art  •''>9G* 
Rev.  Laws  Vt.,  1880,  sees.  1180-1185;  Code  Wash.  Terr.,  1881,  sec.  1990 


§118        PERSONAL  rROPERTY  SUBJECT  TO  EXECUTION.  280 

tlio  juuiliasrr  o{'  iiiDitiragod  personalty  must,  before 
he  lan  artiuiiv  a  rij^ht  to  its  possession,  obli<^atc  hini- 
solf,  Nvitli  a  o:ooil  surety,  not  to  remove  it  out  of  the 
county,  niul  to  preserve  it,  and  have  it  fortheoming 
when  reciuiivd  to  satisfy  the  mortgage/  In  IMaine, 
New  Hampshire,  aiul  Massachusetts,  the  attaching 
officer  neeil  not  pay  the  mortgage  debt  until  after  a 
demand  luts  been  made  thercibr,  accompanied  by  a 
statment  of  the  amount  remaining  unpaid,"  and  certain 
penalties  are  prescribed  for  making  a  false  statement 
of  such  amount. 

g  118.  Mortgagee's  Interests.  —  In  many  of  the 
states,  a  mortgage  is  no  more  tlian  a  mere  lien,  hav- 
ing, before  foreclosure,  no  cftect  on  tlie  title  except  to 
make  it  stand  as  security  for  the  payment  of  the  mort- 
gagor's debt.  In  such  a  case,  it  would  be  clear,  upon 
principle,  and  in  the  ab.sence  of  all  authority,  that  the 
mortgagee  had  no  estate  in  the  property  mortgaged 
subject  to  execution,  though  a  levy  on  the  note  or 
other  indebtedness  secured  by  the  mortgage,  in  states 
where  choses  in  action  are  subject  to  execution,  would 
operate  to  transfer  the  indebtedness,  and  as  an  incident 
thereto,  the  inortoao-e  lien.  But  under  the  common- 
law  system,  while  the  mortgage,  technically  speaking, 
vested  the  le«;al  title  in  the  mort'j^aj^ee,  yet  for  all 
practical  purposes,  he  was  regarded  merely  as  a  lien- 
Lolder.  His  interest  was  not  liable  to  be  taken  in 
execution  during  the  continuance  of  the  mortgagor's 
equity  of  redemption;  for  all   the  purposes  of  cxccu- 

»  Gen.  StoU.  K v.,  1881.  p.  435,  sees.  1,  2. 

»Rcv.  Hutu.  Me.,  1871,  c.  81,  hccs.  41-44;  Tub.  Stata.  Mass.,  1882,  c.  ICl, 
Bees.  74-84;  Gen,  Laws  N.  H.,  1878,  c.  2*^4,  bccs.  17,  18,  and  c.  23G,  bccs.  3-5. 


281  PERSONAL  PROPERTY   SUBJECT  TO  EXECUTION.        §  119 

tions  it  was  treated  merely  as  a  chose  in  action.'  But 
when  the  property  becomes  that  of  the  mortgagee  by 
reason  of  its  forfeiture  under  the  mortgage,  it  is  liable 
to  execution  under  a  writ  against  him.^ 

§  119.  Leaseliold  Interests  in  Real  or  Personal 
Property.  —  A  term  of  years  in  real  estate  was  always, 
by  the  common  law,  regarded  as  a  chattei.  It  was 
transferred  as  personal  and  not  as  real  estate.  In 
this  respect  there  was  no  difference  between  voluntary 
and  involuntary  transfers.  Hence  a  leasehold  inter- 
est in  lands,  for  whatever  term  of  years  it  may  con- 
tinue, must,  unless  some  statute  directs  otherwise,  be 
levied  upon  and  sold  as  personal  propert}'.^  One  who 
has  hired  personal  property  for  a  term  has  an  interest 
therein,  subject  to  seizure  and  sale  under  execution. 
The  purchaser  at  such  sale  acquires  the  right  to  retain 
and  use  the  property  to  the  end  of  the  term.'*     But 

1  Chapman  v.  Hunt,  2  Beasl.  370;  Dough  ten  v.  Gray,  2  Stock.  Ch.  323; 
Jackson  v.  V/illard,  4  Johns.  42;  Erowu  v.  Bates,  54  Mc.  520;  92  Am.  Dec. 
C13;  Eaton  v.  Wliitinp,  3  Pick.  484;  Thornton  v.  Wooil,  42  Mc.  282;  Hunt- 
ington r.  Smith,  4  Coun.  23.');  M:irsh  r.  Austin,  1  Allen,  235;  Glass  r.  ElUsou, 
9  X.  H.  C'J;  'irapnall  v.  State  Bank,  18  Ark.  53;  Prout  v.  Root,  IIG  Mass. 
410;  Knowlc.i  v.  Hcrljcrt,  11  Or.  54,  240. 

■*  Ferguson  r.  Lee,  U  Wen  J.  2.J8;  Phillips  v.  Hawkins,  1  Fhi.  202. 

»  Williams  v.  I-towning,  18  Pa.  St.  CO;  Barr  v.  Doe,  G  Blackf.  334;  38  Am. 
Dec.  145;  Buhl;-.  Kcnyon,  11  Mich.  249;  Sparrow  i\  Earl  of  Bristol,  1  Marsh. 
10;  Dalzcll  r.  Lynch.  4  Watta  &  S.  255;  Bigclow  r.  Finch,  17  Barb.  394;  Doe 
r.  S.nith,  1  Moody  &  II.  137;  Chapman  r.  Gray,  15  Mass.  439;  Shelton  v.  Cod- 
man,  3  Cush.  318{  Thomas  ;•.  Blackmore,  5  Yerg.  113;  Glenn  v.  Peters,  Busb. 
4.'57;  59  Am.  Dec.  w(»3.  A  Icaso  for  uinety-ninc  years  is  subject  to  execution 
ai  a  chattel  intere:it  (Bisbco  »'.  Hall,  3  Ohio,  449),  though  it  contains  a  stipula- 
tion that  it  shall  bo  renewable  forever  (Reynolds  v.  Commissioners  5  Ohio, 
234).  But  under  tlie  laws  of  Ohio,  it  is  now  settled  that  pernianent  leascholils 
are  to  bo  con.iiileri.J  03  real  estate.  McLean  v.  Rockey,  3  McLciin,  235; 
Northern  Bank  of  K-ntuoky  r.  Roosa,  13  Oliio,  33-4;  Luring  r.  Melendy,  11 
Ohio,  355.  Ill  Cuiiiicflicut,  un  estate  for  999  years,  though  not  a  freehold, 
most  bo  sold  an  red  ctatc.     Munn  ?'.  Carrington,  2  Root,  15. 

*  Va:i  Antwerp  ?•.  N<winan,  2  Cow.  643;  15  Am.  Dec.  3-tO;  Gonhm  v.  Har- 
per, 7  Term  Bcp.  1 1 ;  Ward  v.  Macauley,  4  Term  Ilvp.  489;  Mauning'a  Case, 


§  ICO        PERSONAL  PROPERTY   SURIECT  TO  EXECUTION.  CS2 

the  tonus  of  tho  liirin«^'  may  lu-  siicli  as  to  ainouiit  to  a 
lucre  license  to  use,  ami  may,  tlicrdor.',  prci-lutlc  any 
transfer  oi'  interest,  whether  vohuituiy  or  compulsory. 
Thus  whi-re  a  waix<>n  was  hind  with  the  i)rovision 
that  it  should  he  us(^»l  only  "lor  the  liakci'  husiness," 
antl  sliould  nt»t  he  i^ohl  oi  loaned,  it,  was  held  that  the 
legal  ellect  of  this  hiring  was  to  eont'«  r  on  the  benefici- 
ary a  mcr^  personal  license,  not  suhject  to  execution.^ 
In  ^linnesota,  certain  sheep  were  lent  to  W.  to  keep 
for  three  years.  W.  was  entitled  to  tlu^  increase,  and 
was  to  deliver  annually  to  the  owmr  of  the  sheep  a 
certain  amount  of  wool.  At  the  end  of  the  term,  W. 
was  to  return  the  same  number  of  sheep  as  wore  lent 
to  him.  Within  less  than  a  year  after  the  commence- 
ment of  his  term,  the  sheep  were  seized  under  process 
against  W.,  whereupon  it  was  held  that  he  had  no 
interest  in  the  sheep  subject  to  execution.^  The 
grounds  of  this  decision  arc  very  imi)erfectly  stated 
in  the  opinion  of  the  court.  Taking  the  opinion,  to- 
gether with  the  ,«??///a6i(s  of  the  reporter,  we  are  inclined 
to  believe  that  the  court  regarded  the  transaction  as  a 
personal  bailment,  induced  by  special  confidence  reposed 
in  W.,  and  conferring  upon  him  certain  rights  and  in- 
terests, which,  for  their  continuance,  were  to  depend 
up<ni  the  continued  exercise  of  his  skill  and  labor  in 
managing  the  property. 

.::  120.  Property  Pawned  or  Pledged.  —  A  pawn  or 
pledge,  unlike  a  mere  lien,  "gives  an  actual  though 
qualified  projjcrty  in  the  thing  pawned  to  the  credi- 
tor"; but,  unlike  a  mortijafre,  it  does  not  divest  the 

8  Coke,  191;  Dean  r.  Whittaker,  1  Car.  &  P.  347;  Houston  r.  Simpson,  1  Jones, 
513;  DufliclJ  r.  Si)otti.swoo.le,  3  Car.  &  P.  43,1;  Allen  v.  RussuU,  19  Tex.  487. 

'  RciMriiillcr  r.  Skiilmorc,  7  Lans.  IGl. 

'  Williams  v.  McGrade,  13  Minn.  174. 

• 


283  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §  120 

debtor  of  the  legal  title  to  his  property.^  There  re- 
mains ill  the  debtor  a  leixal  interest  such  as  the  law 
will  recognize.  The  only  obstacle  to  the  sale  of  pledged 
property  under  execution  against  the  pledgor  is  that  the 
pledgee  being  entitled  to  the  possession,  the  officer  has  no 
right  to  seize  upon  the  property  in  violation  of  the  rights 
of  the  pledgee.  Hence,  at  common  law,  pledged  prop- 
erty could  not  be  taken  under  execution,  against  the 
pledgor  without  first  divesting  the  pledgee's  right  of 
possession  b}-  paj^ing  or  tendering  to  him  the  amount  of 
his  debt."  Upon  the  voluntary  surrender  of  the  property 
to  the  officer  by  the  pledgee,  it  may  doubtless  be  sold 
under  execution.^  In  the  United  States,  there  are  sev- 
eral decisions  holding  the  interest  of  a  pledgor  to  be  sub- 
ject to  lev}'  and  sale,  independently  of  statutes  declaring 
it  to  be  so.*  The  rights  of  the  pledgee  were  preserved 
by  requiring  the  property  to  be  returned  to  his  posses- 
sion after  tlie  sale.  In  some  of  the  states  the  right  to 
seize  pledged  property  under  a  wu'it  against  the  pledgor 
is  given  by  statute.  The*  rights  of  the  pledgee  are 
protected  under  some  of  these  statutes,  by  requiring 
the  judgment  creditor  to  pay  the  amount  due  before 

'  Turner  on  Contract  of  Pawn,  29;  Castelyon  v.  Lansing,  2  Caincs  Cas.  200; 
Barrow  v.  Paxton,  5  Johns.  258;  4  Am.  Deo.  .354;  Brown  v.  Bemeiit,  8  Johns. 
97;  McLean  r.  Walker,  10  Johns.  471. 

'  Legg  r.  Evans,  G  Mees.  &  W.  .%;  9  L.  J.,  N.  S.,  Ex.  102;  Rogers  v.  Ken- 
nay,  15  L.  J.,  N.  S.,  Q.  B.  381;  Story  on  Bailments,  sec.  353;  Vincr's  Abr., 
tit.  Pawn,  citiii;,'  Waller  r.  Hanger,  3  Bulst.  17;  Cogs  r.  Bernard,  .')  Holt,  528; 
Scott  r.  Scliolly,  «  East,  4(J7;  Ba.Uam  v.  Tucker,  1  Pick.  38'.>;  11  Am.  Dec. 
202;  Mf)oro  v.  Hitclicock,  4  Wend.  292;  Pomeroy  r.  Sinitii,  17  Pieic.  85;  Stief 
V.  Hart,  1  N.  V.  28.  In  Pennsylvania,  the  otiieer  may  sell,  though  he  cannot 
seize,  i»led;j;(vl  g(>f>d8.  Strodea  v.  Caven,  3  Watts,  258;  l^ugh  r.  Kirkpatrick, 
64  Pa.  St.  84;  93  Am.  Dee.  G75. 

*  Mower  r.  Sticknoy,  5  Minn.  .397. 

♦  Bakowell  r.  Ell.worth,  0  Hdl,  484;  Stief  v.  Hart,  1  N.  Y.  20;  WilUainar. 
Galliek,  II  (Jr.  337;  McConcgy  v.  McCaw,  31  Ala.  447;  Mech.  B.  &  L.  A.  v. 
Conover,  14  N.  J.  Eq.  219. 


§  \'2i       rElI.^OX.VL  rUOrERTY  SUBJECT  TO  EXECUTION.  2S4 

takin\;;  tlio  property  tViun  tlic  jOchIl^oo;'  uiulci-  others, 
this  jvivmont  iumhI  not  1h>  made  oxeept  iVoiii  i\\o  pro- 
ctH\ls  of  the  saK\"  In  liuliaiia and  Louisiana  (lie  rijj^lit 
to  srizo  and  sell  di>os  not  si'eni  to  depend  on  any  prior 
payment  of  the  amount  due."  In  several  other  states 
the  riijht  to  levy  and  .>^ell  is  eonferred  by  statutes,  sub- 
ject to  the  rights  of  tlu*  ]>le(lL:;or,  l)ut  without  stating 
whether  the  prop(^rty  may  he  taken  from  the  possession 
of  the  pledgee  without  iirst  paying  the  sum  due  him."* 
In  Xew  York,  Pennsylvania,  Texas,  and  Wisconsin, 
the  pledge  may  be  levied  on  and  sold,  but  without  dis- 
turbing the  possession  of  the  pledgie.'^'  In  Vermont 
the  levying  otiicer  may  seize  the  projjert}',  and  then 
demand  of  the  pledgee  a  written  statement  of  tho 
amount  due  under  oath,  and  the  creditor  may  pay  the 
same  within  a  designated  time,  and  thereupon  become 
subrogated  to  the  rights  of  the  pledgee."  The  pledgee 
may  levy  on  the  [)ledged  property  under  a  writ  in  his 
favor  against  the  pledgor.  The  effect  of  such  a  levy 
upon  the  pledgee's  lien  is  in  doubt,  some  of  the  authori- 
ties intimating  that  it  is  a  waiver  thereof,  and  others 
in.si.sting  that  it  is  not."  Whether  the  interest  of  a 
pledgee  is  subject  to  levy  and  sale  is  a  question  which 

'  LaWdCul.,  1S70,  1..  82,  sees.  17,  IS;  Rev.  SUitB.  Me.,  1S71,  c.  81,  sees.  41,  44; 
Pub.  Statj.  Ma«i.,  1882,  c.  IGI,  sees.  74-78. 

'CodeGa.,  1873,  sec.  2144. 

»  Rfv.  StatB.  Iiid  ,  1870,  p.  207,  sec.  430;  Civil  Code  La.,  art.  3157;  Uomer 
V.  Deunia,  34  La.  Auu.  389. 

♦  Coinp.  Laws  Midi.,  1871,  eec.  G097;  Gen.  Stata.  Miun.,  1S78,  c.  CO,  soc.  309; 
Gen.  UwsN.  IL,  1878,  c.  224,  sees.  17,  18. 

^4  Rev.  Stata.,  1882;  aec.  1412,  Code  Civ.  Proc;  Reichenl);u;h  v.  McKcan, 
9.'>  Pa.  St.  432;  li^v.  Stata.  Tex.,  1879,  art.  2290;  Rev.  Stat.^.  \Vi».,  1878,  c.  1.30, 
■ec.  2988. 

•Rev.  Lawj  Vt,  1880.  sees.  1180-1185. 

'  Jouea  on  Pledges,  aecu.  599-001;  Arcndalo  v.  Morgan,  5  Sueed,  703; 
Sicklcj  V.  RicharAion,  23  Hun,  559;  Lcgg  v.  Willard,  17  Pick.  140;  28  Am. 
Dec.  2-S2. 


285  PERSONAL  TROPERTY  SUBJECT  TO  EXECUTTOX.        §121 

has  received  very  little  consideration.  As  lie  has  a 
beneficial  interest  accompanied  by  a  rightful  possession, 
there  seems  to  be  no  reason  for  denying  to  his  creditor 
the  power  to  reach  such  interest  under  execution.^ 
With  respect  to  subjecting  to  execution  the  interest  of 
the  pledgor  b}"  garnishment  or  trustee  process  served 
upon  the  pledgee,  the  rule  is,  in  the  absence  of  statu- 
tory regulation,  the  same  as  in  the  case  of  direct  levy 
and  sale.  The  right  to  garnish  such  property  is  denied, 
on  the  ground  that  no  property  can  be  reached  by  this 
proceeding  except  that  which  is  subject  to  execution.^ 
It  is  clear  that  some  remedy  ought  to  exist  to  reach 
the  interests  of  pledgors  without  impairing  the  riglits 
of  pledgees;  and  also  that  the  remedy  which  will  best 
accomplish  these  two  objects  is  by  garnishment.  Stat- 
utes have  therefore  been  enacted  in  many  of  the  states 
extending  that  remedy  so  as  to  reach  the  interest  of 
pledgors  in  property  while  in  the  possession  of  pledgees.^ 

§121.  Estates  of  Bailees. — The  mere  fact  that 
property  is  in  the  posses-^ion  of  a  bailee  interposes  no 
obstacle  to  its  seizure  under  an  execution  against  its 
owner.^  When  the  contract  of  bailment  is  such  as  to 
give  the  bailee  some  beneficial  interest  in  the  property, 
the   case    is    different.     An   officer,   acting   under   an 

'  Turner  on  Contract  of  Pawn,  189;  Saul  v.  Kruger,  9  How.  Pr.  5G9. 
"It  seems  to  liave  l»een  formerly  thought  that  goods  pledged  could  not  bo 
taken  in  execution  at  all  for  tlio  ilebt  of  tho  pawnee."  Turner,  p.  189,  citing 
Com  Dig.,  tit.  Mortgage,  A;  Modes  r.  Conham,  Owen,  124. 

»  Whitney  v.  Dean,  5  N.  H.  240;  Howard  v.  Card,  0  Greenl.  353;  Kergin  v. 
Dawson,  1  (Jilin.  80;  Patterson  v.  Il.irlaiid,  J 2  Ark.  158. 

»  .See  c.  545,  Civil  Code  of  Cal.;  Tna.Iwcll  v.  Davis,  .T-1  Cal.  001 ;  94  Am.  Doc. 
770;  Rev.  Stati.  Me.,  1S71,  c.  HC>,  sees.  50,  51;  Comp.  Laws  Midi.,  1S71,  c.  202, 
•ec.  G472;  ALlrich  r.  Woodcock,  10  N.  II.  99;  Hughes  r.  Corey,  20  Iowa,  399; 
Carty  v.  FcnHtem.-iker,  14  Oliio  iSt.  4.")7;  Dluko  v.  Hatch,  25  Vt.  555. 

•  'Ihomin  I'.  TUomaa,  2  A.  K.  Marah.  430;  Bealo  v.  Digges,  G  Gratt.  582. 


§  IJ-J        PERSONAL   rUOI'KRTY  SUBJECT  TO  EXECUTION.  280 

execution,  o;uin(»t,  liy  liis  K'vy,  ohtain  nor  transfor  any 
greater  interest  in  the  proj)i>rty  than  was  possessed  by 
the  clet'eudant  at  the  time  o\'  the  Irvy.  1  £ence,  if  a 
biiilee  lias,  as  aij^ainst  the  owner,  tlie  rii^lit  to  retain 
possession  of  the  property  for  a  specitied  time,  he  has 
the  same  right  as  against  an  ollicer  proceeding  under  a 
writ  atrainst  the  itwncr.  Tlie  officer  cainiot,  in  sueh  a 
case,  hiwfuU}'-  seize  the  property.*  lie  can  only  sub- 
ject it  to  execution  where  some  statute  has  provided 
him  with  the  means  of  reaching  property  of  which  he 
is  not  authorized  to  take  possession. 

g  122.  Estates  in  Reversion  or  Remainder. — The 
difficulty  suggested  in  the  preceding  .section,  of  levy- 
ing an  execution  on  tlie  goods  of  a  bailor  while  the 
bailee  lias  the  right  to  continue  in  possession,  is  also 
to  be  met  in  all  cases  where  an  execution  is  sought 
to  be  levied  on  an  estate  in  reversion  or  remainder  in 
chattels.  In  such  a  case  the  owner  of  tlie  estate  in 
possession  need  not  surrender  the  property  to  the 
sheriff;  and  it  seems  to  be  conceded  that,  on  common- 
law  principles,  the  officer  cannot  sell  property  of  which 
he  cannot  take  possession.  Hence  it  has  been  held 
that  an  estate  in  reversion  or  remainder  cannot  be  sold 
under  execution  at  law."  But  in  North  Carolina 
a  sale  under  execution  of  an  estate  in  reversion  or 
remainder  was  sustained,  the  owner  of  the  estate  in 
possession  having  produced  the  property,  and  had  it 
present  at  the  sale.^     An  estate  in  remainder  in  chat- 

'  Hartford  r.  .Jackson,  11  X.  H.  M."). 

'  Allen  r.  Scurry,  1  Ycrg.  'M;  '2-1  Am.  Dec.  4.36;  note  to  Strinj,'fellow  v. 
Broun  MtpjKJ,  DycT,  67  1>;  Sale  r.  Saunders,  24  Miss.  .38;  Cu  Am.  Dec.  I.";  ( JooJe 
f.  Ixm^mirc,  .'J5  Ala.  G(JS;  Smith  v.  Nilcs,  20  Vt.  lil.j;  4'J  Am.  I  toe.  TyJ. 

'  liUutoii  V.  Morrow,  7  Ired.  Eq.  47;  53  Am.  Dec.  391;  Knight  v.  Leak,  2 
Dev.  &  li.  133. 


2S7  PEKSOXAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  123 

tcls  is  now  liable  to  attachment  under  the  statutes  of 
Tennessee.^ 

§  123.  Inchoate  Interests.  —  There  may  be  certain 
inchoate  interests  in  property  which  do  not  become 
settled  nor  perfect  until  the  lapse  of  a  certain  time 
or  the  performance  of  certain  conditions.  Thus  the 
owner  of  a  flock  of  sheep  may  give  them  into  the  cus- 
tody of  some  other  person,  on  an  agreement  by  which, 
in  consideration  of  care  bestowed,  such  person  becomes 
entitled  to  all  or  some  portion  of  the  w^ool  to  be 
grown  on  such  sheep.  In  such  case,  it  has  been  held 
that  the  owner  continued  to  be  the  owner  of  the  sheep 
and  of  the  wool  until  shearing  time,  or  until  a  full 
performance  of  the  conditions  of  the  agreement;  and 
tiierefore,  that  the  other  person  had  no  interest  in  the 
wool,  prior  to  shearing  time,  which  was  subject  to  exe- 
cution.^ Similar  principles  appl}^  to  the  owner  of  lands 
and  a  cropper  thereon,  when  the  former  is  to  have  one 
half  of  the  crop  "in  the  half-bushel."  In  this  and 
similar  cases,  it  is  considered,  that  the  title  belongs  to 
him  who  has  raised  the  crop,  "until  it  is  thrashed, 
measured,  and  one  part  set  off  to  the  landlord";  until 
this  division  is  made,  the  landlord's  part  is  not  subject 
to  execution.^  So  where  A  was  to  cut  down  trees 
and  haul  the  logs  to  a  certain  place  for  market,  and  B, 
the  owner  of  the  land,  was  to  sell  the  Jogs,  and  after 
deducting  stumpage  and  advances  made  lor  supplies, 
was  to  pay  A  the  balance,  it  was  held  that  A  had  no 
interest  in  the  logs  subject  to  execution.*     If  a  land- 

'  LfM.kwood ?•.  Nye,  2  Swan,  f)!');  M  Am.  Dec.  73. 

»  Hasl.rouck  v.  lioiiton,  GO  IJarl).  413;  41  How.  Pr.  208. 

*  Williams  r.  Sniitli,  7  In<l.  5.")'.);  (Jonioii  v.  Armatroug,  5  Ircd.  409;  Dcaver 
r.  Rice,  4  Dcv.  &  11.  431;  3^t  Am.  Dec.  3S3. 

♦  Peltori  V.  Tompl.;,  1  Ilaiiii.  (N.  IJ.)  27.1.  Sec  Provis  v.  Chcve.s,  9  R.  I.  53; 
98  Am.  Dec.  307.     But  ia  cooca  like  tlioso  referred  to  iii  ttio  abuvu  section, 


5  l'2i        PERSONAL  PROPERTY   SURJECT  TO   TXECITTTON.  288 

owner  sti>cks  liis  farm  and  ]>uts  it  in  cliarp^o  of  a  tiMiant, 
uiulrr  an  ajj^rooinont  tliat  tlu;  tonant  shall  have  ono 
lialt"  i>f  the  sjfi'owth  of  the  stock  and  om^  liaif  of  the 
wool  pnnhuH'd  hy  the  sheep,  the  latter,  |)ri(tr  to  the 
expiratioii  of  Iiis  l«*;ise,  lias  a  uww  inchuati'  interest, 
which  is  not  suhjcet  to  exin-ution.'  It",  liowcvcr,  ono 
obtains  the  ownersliip  of  property  with  a  ri<j^ht  to  iti 
posses>ion,  Jiis  title  is  not  to  be  reu^arded  as  inchoate 
mere]}'  because  he  has  not  paid  for  it.  Thus  where  a 
contract  was  entered  into,  l»y  the  terms  of  which  tho 
owners  of  a  stone  quarry  })ermitted  certain  contractors 
to  quarry  and  remove  stone  for  two  outlet  locks  in  tho 
Pennsylvania  canal,  the  quantity  to  be  ascertained  by 
measurement  when  in  tlie  locks,  and  to  be  paid  for  as 
soon  as  payments  were  made  to  contractors  on  tho 
canal,  it  was  held  that  as  soon  as  the  stone  was  quar- 
ried, thouL,di  it  remained  at  the  mouth  of  tho  quarry, 
it  was  subject  to  execution  ajj^ainst  the  contractors,  on 
the  ground  that  the  land-owner  had  trusted  to  their 
personal  responsibility." 

§  124.  Conditional  Sales.  —  In  ^lartin  v.  Mathiot,^ 
property  was  delivered  into  possession  of  a  person  under 
an  agreement  that  the  title  was  not  to  pass  until  he 
made  payment  of  a  sum  stipulated  as  the  purchase 
price.  This  transaction  was  regarded  by  the  court  as 
fi*audulcnt  as  against  the  creditors  of  the  person  in  pos- 
session ;  and  they  were  therefore  allowed  to  seize  tho 

it  may  lie  that  the  <lefcTi<lant  haa  a  special  interest  subject  to  execution.  Suo 
Weaver  r.  I>arl)y,  42  R<irl>.  411.  where  D.  waa  to  cut,  liew,  and  raft  certain 
timber  to  l*e  hoM  by  B.,  and  1)  was  to  liavo  ten  and  one  half  cents  per  cabio 
foot  for  tiic  tini))cr  sold. 

>  Smith  r.  Mcech,  2li  Vt.  233. 

»  Watta-r.  TiblKiU,  G  Pa.  St.  4^17. 

»  11  Serg.  &  R.  214;  IG  Am.  iJec.  401.  See  Haak  v.  Linderman,  64  Pa.  St. 
409;  3  Am.  Pu-p.  G12;  KuUhum  r.  Wataon,  24  111.  5'J2. 


289  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  124 

property  under  execution.  It  was  said  that,  b\'  encour- 
aging such  transactions,  people  would  be  enabled  to 
obtain  a  fictitious  credit,  by  being  invested  with  the 
apparent  ownership  of  the  property  of  others ;  and  that 
creditors  would  necessarily  be  defrauded.  In  a  subse- 
quent case  of  a  conditional  sale  in  the  same  state,  where 
there  was  no  open,  visible  change  of  possession,  it  was- 
held  that  as  nothing  had  been  done  to  deceive  cred- 
itors, the\'  could  not  seize  upon  the  property  as  that 
of  the  vendee.^  With  the  exception  of  the  case  first 
referred  to,  conditional  sales  have  been  ever^^where  up- 
held. The  fact  that  possession  is  delivered  under  the 
contract  of  sale  does  not  enlar^^e  the  rii^hts  of  the  ven- 
dee;  nor  does  it  authorize  his  creditors  to  resfard  the 
sale  as  absolute.  Until  the  purchase-money  is  paid,  or 
the  other  conditions  of  the  contract  are  performed,  the 
title  remains  with  the  vendor,  if  he  so  stipulated  in  his- 
contract.  The  vendee  is  powerless  to  transfer  a  title 
which  he  does  not  possess,  although  the  purchaser  from 
hira  is  ignorant  of  the  true  condition  of  the  titlc.^  The 
vendee  has  no  interest  subject  to  execution.^    So  goods. 

»  Lehigh  Co.  v.  Ficia,  8  Watta  &  S.  232. 

«  Kohler  r.  Hayes,  41  Cal.  455;  Ash  r.  Putnam,  1  Hill,  .302;  Bailey  v.  Har- 
ris, 8  Iowa,  .331;  74  Am.  Dec.  312;  Sargent  v.  Metcalf,  5  Gray,  30G;  CG  Am. 
Dec.  308;  Whitwtll  r.  Vincent,  4  Pick.  449;  10  Am.  Dec.  .35;  Baker  r.  Hall,  15- 
Iowa,  279;  Emul.ar  v.  Rawk-s,  23  In.l.  225;  92  Am.  Dec.  311;  Ballard  r.  Bur- 
gett,  40  X.  Y.  314;  Lane  r.  Borland,  14  Me.  77;  31  Am.  Dec.  .33;  Luey  r. 
Bun.ly,  9  N.  H.  2i»8;  32  Am.  Dec.  3.59;  Burhank  r.  Crooker,  7  Gray,  158;  Gft 
Am.  Dec.  470;  Ketchum  v.  Brennaii,  .53  Miss.  59i>;  Mount  r.  Harris,  1  Smedca 
A  M.  185;  40  Am.  Dec.  89;  note  to  Palmer  c.  Howard.  1  Am.  St.  Rep.  03;  Ilo.so 
r.  Story,  1  Pa.  St.  190;  44  Am.  Dec.  121;  Croclcer  r.  Gullifcr,  44  Me.  491;  Gi> 
Am.  Dec.  118;  Hirschom  r.  Cinncv.  98  Maas.  150;  Colo  v.  Berry,  42  N.  J.  L. 
308. 

•Sage  r.  Sleutz,  23  Ohio  St.  1;  Gamlding  v.  Picad,  Mei^s,  281;  Buckmastcr 
r.  Smith,  22  Vt.  203;  W(K>dl)ury  v.  Long,  8  Pick.  543;  19  Am.  Dec.  345;  Bigo- 
low  r.  Huntley,  8  Vt.  151;  Herring  v.  Hoi)pock,  3  Duer,  20;  15  N.  Y.  409; 
Cardinal  r.  IC.! wards,  5  Ncv.  .30;  Hart  r.  Carpenter,  24  Conn.  427;  Stmng  r. 
Taylor,  2  Hdl,  .320;  Harknew  r.  RuaacU,  118  U.  S.  003;  Bratlahaw  v.  Worucr, 
Vol.  I.  -  Vi 


§  1J4        PKUSONAL   rUOrKRTY   SUBJECT  TO   EXECUTION.  200 

iu;iv  \<c  iUVwcwd  to  an  aL^iiit  lor  salr,  uiidci-  an  as^rce- 
mout  that  tln^so  not  sold  may  Ik-  ifturnrd.  In  sncli 
caso,  tho  at^fiit  h  s  no  intiTi-st  in  llio  unsold  ^oods  sub- 
ject to  cxocutii>n.'  llscruisto  nuikc  no  tlillricncc  that 
tho  vcncloe  has  boon  intrustinl  with  the  ai)i)arcnt  own- 
ersliip  of  tho  in-oju  rty  with  |>o\vi  r  to  dispose  of  it  in  the 
ordinary  course  of  business.  Where  K.  i'urnished  G. 
witli  a  stock  of  ready-made  clothinj^,  witii  wliich  to  jj^o 
in  business  in  Cr.'s  name,  the  property  to  remain  K.'s, 
and  G.  was  to  purchase  of  no  other  person  but  R.,  was 
to  do  a  cash  business  only,  and  to  rmiit  the  proceeds 
to  1\.  after  tiiking  out  his  salary  and  expenses,  it  was 
held  that  the  goods  were  not  subject  to  execution 
against  G."  This  rule  is  also  api)lieable  to  a  consign- 
ment of  jiropiTty  to  a  dcalor  to  be  l)y  him  sold  and  the 
proceeds  remitted  t(3  the  consignor,  the  property  to  re- 
main the  consignor's  till  paid  for,^  But  this  principle 
in  regard  to  conditional  sales  will  not  be  allowed  to 
support  mere  devices,  resorted  to  for  the  purpose  of 
avoiding  creditors.  Ilcnce  where  hquors  were  sold  to 
a  bar-keeper,  to  be  by  him  retailed  in  the  course  of  his 
busin(^ss,  with  an  agreement  that  the  portion  not  sold 
should  continue  the  property  of  the  wholesaler,  the 
court  retiarded  the  transaction  as  an  absolute  sale,  and 

54  Iiul.  58;  Blanchanl  v.  Child,  7  CJray,  157;  Armington  r.  Houston,  38  Vt. 
4JS;  'Jl  Am.  Dec.  3GG;  Rowan  r.  State  Bank,  45  Vt.  100;  Rcevea  v.  Harris, 
1  Bill.  5G.'J;  Baylor  r.  Sinitlier.s,  1  Litt.  105;  Hussty  v.  Tliornton,  4  Mass.  405; 
3  Am.  Doc.  224;  Mar^toii  r.  BaMwiii,  17  Mass.  COG;  Clark,  v.  Wells,  12  Am. 
Rcj..  187;  45  Vt.  4;  Buckmast'.r  v.  Smith,  22  Vt.  21)3;  Rirrow  r.  Colc^  3 
Camji  'J-2;  Barrett  r.  RritcharJ,  2  Pick.  512;  13  Am.  Dec.  449;  Wil.lcr  v.  SUf- 
for.1.  30  Vt.  309;  Reed  r.  Upton,  10  Pick.  522;  20  Am.  Dec.  545;  McFarland 
r  Farmer,  42  X.  II.  380;  Luca«  r.  Birilsey,  41  Conn.  357.  For  law  in  force  in 
]o«ra,  nc«  Pittal>urgh  L.  &  C.  Workn  r.  State  Bank,  8  Chic.  L.  N.  41;  ^loseley 
r.  Shattuek,  43  Iowa,  5J0. 

>  Merrill  r.  Rmker,  Bald.  528;  Benz  r.  Geiabcll,  24  Minn.  1G9. 

*  RoljiDson  r.  Ciiaplinc,  0  Iowa,  90. 

»Coler.  Manu,  02  N.  Y.  1. 


291  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §  124 

the  agreement  as  colorable  only/  If  this  decision  can 
be  harmonized  with  the  prevaiHng  authorities  on  the 
subject,  it  must  be  upon  the  ground  that  the  peculiar 
character  of  the  property  and  the  circumstances  of  the 
particular  case  indicated  that  the  transaction  was  not 
in  good  faith,  but  was  a  mere  device  resorted  to  for  the 
purpose  of  defrauding  creditors. 

Where  the  memorandum  of  a  sale  was  as  follows  : 
"Brighton,  July  7,  1873,  John  McDonald  bought  of 
T>.  McKinney  and  Son  one  roan  mare  for  $300.  Paid 
$50.  The  mare  to  be  paid  for  August  1st;  if  not,  to  be 
returned  to  D.  McKinney  and  Son,"  —  it  was  held  that 
this  was  not  a  conditional  sale,  and  that  the  title  therefore 
vested  in  the  purchaser  on  the  delivery  of  the  property 
to  him."  A  few  cases,  while  conceding  that  as  between 
the  original  parties  a  conditional  sale  does  not  transfer 
the  title  until  compliance  with  the  condition,  hold  that 
a  purchaser  from  the  vendee  in  possession,  in  good  faith 
and  for  value,  acquires  a  perfect  title  freed  from  the 
condition.^  These  cases  have,  except  in  the  state  of 
Kentucky,  been    overruled.     Transactions   have  very 

'  Lu.iaeu  V.  Ilazen,  31  Barb.  C50;  Bonestcel  v.  Flack,  41  Barb.  435;  27  How. 
Pr.  310. 

»  McKitiDcy  r.  Bradkc,  118  Mass.  .321. 

>  Vaughn  r.  Ilopdoa,  10  Bush,  3.17;  Wait  v.  Green,  3G  N.  Y.  55G;  Smith  r. 
Lyncs,  5  N.  Y.  41.  But  these,  and  earlier  New  York  cases  in  harmony  with 
them,  are  cither  explained  away,  or  overruled  l)y  Ballard  r.  Burgett,  40  N.  Y. 
314;  Austin  r.  Dye,  40  N.  Y.  500;  Maynard  r.  Anderson,  54  N.  Y.  G41.  In  the 
opinion  of  the  court  in  Vauglin  c.  llopsou,  10  Bush,  3.37,  it  is  said  that  "  numer- 
ous autlioritics  niiylit  be  cited  sustaining  what  we  conceive  to  be  tlie  true  <loc- 
trinc  on  this  8nl)ject,  holding  that  where  there  is  a  conditional  sale  of  chattels, 
wjtli  an  actual  delivery  of  possession  to  the  vendee,  a  purchaser  from  the  latter, 
in  goo«l  faith,  and  witliout  notice  of  the  condition,  euiijuiri'S  a  perftct  title." 
Whence  these  autlioritics  might  be  cited  wo  cannot  imagine,  and  nothing  less 
than  imagination  can  supply  tliem.  There  was  not,  when  that  decisou  waa 
rendered,  a  single  unovcrruled  case  in  harmony  with  it,  except  in  the  states  of 
Illinois  and  Pennsylvania.  Murch  r.  Wright,  4(i  111.  487;  95  Am.  Dec.  455; 
Schweitzer  r.  Tracy,  7G  111.  345;  Stadtfield  r.  ilunteman,  92  Pa.  St.  63;  37 
Am.  Rep.  CGI. 


§  1-M   PERSONAL  rROPKRTY  SUIUKOT  TO  EXECUTION.    202 

ln'<|ihMi(ly  l)ti  11  jnit  in  (Iit>  lorin  of  otHKlitloniil  sales, 
when  tlio  ival  ri-Iat'unis  of  {\\c  parties  wi'io  those  of 
niort^'agors  and  im»rt|;agees.  Tlic  advantaj^cs  of  chat- 
tel nh)rtij[aL;;t\s  have  tlius  heeu  srcuivd,  even  when  secu- 
rity of  that  character  was  forbidden  with  respect  to  the 
class  of  property  in  controversy.  Recently  the  courts 
have  lu'cn  iiuTiiird  to  si-rutinize  tliese  transactions  more 
closely,  arul  to  refuse  to  he  bound  by  the  name  and  form 
given  them  by  the  parties,  if  satisfied  from  the  whole 
transaction  that  it  was  not  a  conditional  sale.  Witli 
respect  to  the  construction  of  contracts  claimed  to  bo 
conditional  sales,  the  supreme  court  of  the  United 
States  has  very  wisely  said:  "The  answer  to  this 
question  is  not  to  be  found  in  any  name  which  the 
parties  may  have  given  to  the  instrument,  and  not 
alone  in  any  particular  provision  it  contains,  discon- 
nected from  all  others,  but  in  the  ruling  intention  of  the 
parties,  gathered  from  all  the  language  they  have  used. 
It  is  the  legal  eliect  of  the  whole  which  is  to  be  sought. 
The  form  of  the  instrument  is  of  little  account."^  The 
contract  here  in  question  was  between  two  corporations, 
one  of  which  was  a  builder  of  cars  and  the  other  the  owner 
and  operator  of  a  railway.  It  recited  that  the  former 
liad  constructed  certain  cars  to  be  used  on  the  railway 
of  the  latter  for  hire,  and  that  the  former  loaned  the  lat- 
ter the  said  cars  for  hire  on  such  railway  for  the  period 
of  four  months,  and  not  elsewhere;  that  the  railway 
company  had  executed  to  the  manufacturing  company 
three  certain  notes,  whieli  were  to  be  collected  at 
maturity,  and  their  proceeds  held  as  security  for  the 
return  of  the  cars  when  demanded ;  that  the  railway  com- 
pany had  the  privilege  of  purchasing  the  cars  at  any  time 

»  HeryforJ  v.  Davia,  102  U.  S.  213. 


293  PERSONAL  PROPERTY    SUBJECT  TO  EXECUTION.       §  124 

on  pa^'ing  a  price  fixed  by  the  contract;  that  until  such 
paj'inent  it  should  have  no  right,  title,  or  interest  in 
the  cars,  except  to  use  them,  and  no  power  to  dispose  of, 
mortgage,  or  pledge  them ;  that  the  cars  were  to  be  rede- 
livered to  the  manufacturing  company  when  demanded, 
in  default  of  the  pa3-ment  of  said  fixed  sum,  with  in- 
terest; that  on  default  in  the  payment  of  any  of  said 
notes,  the  manufacturing  company  might  take  possession 
of  all  said  cars,  and  retain  all  payments  made  on  any  of 
such  notes,  and  would  sell  said  cars  and  return  to  the 
railway  company  any  surplus  remaining  out  of  the  net 
proceeds  of  the  sale,  over  and  above  the  amount  clue 
on  the  unpaid  notes;  and  finally,  that  on  payment  of 
all  of  the  notes,  the  manufacturing  company  would  con- 
vey the  cars  to  the  railway'  company.  This  contract 
was  construed  not  to  be  a  conditional  sale,  but  an 
attempt  to  obtain  or  reserve  a  lien  in  a  form  forbidden 
by  the  laws  of  the  state;  and  the  property  was  held  to 
be  subject  to  execution  against  the  railway  company. 
The  grounds  of  this  decision  were,  that  no  price  for  the 
hire  was  mentioned  or  alluded  to;  that  the  manufac- 
turing company  took  notes  for  the  full  price  of  the  cars, 
and  exacted  security  for  their  payment,  and  would  there- 
by realize  the  price  of  the  cars  before  the  four  months 
had  elapsed;  no  part  of  the  money  was  to  be  returned  to 
the  railway  company  in  any  contingency,  and  in  the  event 
of  the  cars  being  taken  from  the  railway  company  and 
sold,  it  was  entitled  to  such  portion  of  the  ]:)roceeds  of 
the  sale  as  remained  after  paying  the  demands  of  the 
manufacturing  company.  "  In  view  of  these  provis- 
ions," said  the  court,  "  we  can  come  to  no  other  con- 
clusion than  that  it  was  the  intention  of  the  parties, 
manifested  by  the  agreement,  the  ownership  of  the  cars 


§  IJl        riTvSONAL   rROPERTY  SURTECT  TO  EXErUTTON.  21Vt 

should  pass  at  once  to  ihv  railroud  company  in  consid- 
eration o(  their  heconiinLT  drhtors  for  thi'  price.  Not- 
withstandin«jj  the  rllorts  to  cover  up  the  real  nature^  of 
the  contract,  its  suhstance  was  an  h}'})othccation  of  the 
cars  to  secure  a  deht  (hie  to  tlie  vendors  for  the  ])rice 
of  a  saU\  The  raih'oad  company  was  not  accorded  an 
option  to  buy  or  not.  They  were  bound  to  pay  the 
price,  either  ity  payinj^'  tliesi>  notes  or  suii(  nderinji^  the 
property  to  be  sold  in  order  to  make  payment.  This 
was  in  no  sense  a  conditional  sale.  This  giving  the 
property  as  a  security  for  the  payment  of  a  deht  is  the 
verv  (.'^senee  of  a  mortjracfe,  which  has  no  existence  in  a 
case  of  conditional  sale." 

The  case  of  Palmer  and  Key  v.  Howard^  was  very  sim- 
ilar in  its  features.  The  plaintitl's  delivered  to  one  St. 
Clair  an  airreement  recitin<'  that  he  had  borrowed  and 
received  of  them  certain  articles  in  good  order;  tluit  if 
the  price  named  should  be  paid,  the  property  to  belong 
to  the  borrower,  otherwise  to  remain  the  property  of 
Palmer  and  Rey;  that  the  borrower  would  keep  the 
property  in  good  order;  pay  the  price  as  per  memoran- 
dum; keep  the  property  insured  for  the  benefit  of 
Palmer  and  Rev;  that  it  should  not  be  removed  from 
certain  designated  premises;  and  that  if  the  borrower 
failed  to  meet  any  of  the  payments,  Palmer  and  Rey 
might  take  the  property,  sell  it,  and  render  the 
borrower  all  surplus  after  paying  "the  price  agreed 
upon  and  the  expenses  of  removal  and  sale."  The 
Court  was  of  opinion  that  it  was  clear  from  the  whole 
agreement  that  tlie  plaintiffs  had  sold  the  property 
t()  St.  Clair,  who,  on  his  part,  had  made  an  absolute 
engagement  to  ]jay  therefor,  and  had  acquired  a  right 

'  72  Cal.  293;  1  Am.  St.  Kcp.  CO,  and  note. 


295  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  125 

to  such  part  of  the  net  proceeds  of  the  sale  as  might 
remaui  after  paying  any  installments  in  the  payment  of 
which  he  had  made  default;  and  that  the  manifest 
scope  and  purpose  of  the  contract  could  not  be  defeated 
by  the  statement  therein  made  that  the  property 
"remains  the  property  of  Palmer  and  Hey."  ^ 

§  125.    Interests   of   Co-tenants    and    Partners.— 

There  can  be  no  doubt  that  an  undivided  intere:st  in 
real  or  personal  property,  unless  held  by  tenancy  by 
entireties,  is  subject  to  execution  the  same  as  a  like 
estate  in  severalty.  Some  difficulty  may  be  experi- 
enced in  determining  how  the  interest  i,  to  be  seized 
and  sold.  In  the  case  of  co-tenants,-  it  is  clear  that 
the  officer's  levy  should,  except  in  the  case  of  severa- 
ble chattels,  purport  to  be  upon  the  defendant's  moiety 
only.  The  officer  may,  however,  take  exclusive  posses- 
sion of  the  chattel,  retain  possession  until  the  sale,  and 
deliver  it  to  the  purchaser.^  It  is  universally  conceded 
that,  exce[>t  where  some  statutory  provision  to  the 
contrary  has  been  enacted,  the  interest  of  a  partner  is 

*  Other  cases  hoMing  that  the  real  nature  of  the  transaction  must  ho  con- 
siJered,  and  cannot  he  destroyeJ  hy  the  name  given  it  by  the  parties,  are 
Hervey  v.  R.  I.  L.  Works,  9.3  U.  S.  GG4;  Murch  v.  Wright,  4G  111.  488;  95 
Am.  Dec.  455;  Hurt  v.  B.  &  S.  Mfg.  Co.,  7  Fed.  Rep.  543;  Greer  v.  Church,  1.3 
Bush,  430. 

»  Newton  V.  Howe,  9  Am.  Rep.  Cl(>;  29  Wis.  531;  Freeman  on  Cotenancy 
and  Partition,  sec.  252. 

'  Freeman  on  Cotenancy  and  Partition,  sec.  214;  Waldman  v.  Broder,  10 
Cal.  378;  Treon  r.  Emerick,  G  Ohio,  391;  Tliomas  r.  Turvey,  1  liar.  &  (1.  4.35; 
McEhlcrry  r.  Fl.inagau,  1  liar.  &  (i.  308;  Walsh  r.  Adam.s,  3  Denio,  125; 
Bcrnal  v.  Ilovious,  17  Cal.  541;  79  Am.  Dec.  147;  Whitney  v.  Lad.l,  10  Vt. 
1G5;  Kill.y  r.  H.'ig«in,  3  J.  .].  Mar.sii.  215;  Durant  r.  Cabbage,  2  Hill  (.S.  C.). 
311;  Caldwell  v.  Auger,  4  Minn.  217;  77  Am.  Dec.  515;  Waddcll  v.  Cook,  2 
Hill,  48;  37  Am.  Dec.  .372;  Reid  r.  Shepardson,  2  Vt  120;  19  Am.  Dec.  G97; 
Phillips  V.  Cook.  24  Wetid.  .389;  Welch  r.  Clark,  12  Vt.  G8G;  3<l  Am.  Dec.  .3G8; 
R4MJ<1  V.  Howartl,  2  Met.  40;  Islay  v.  Stewart,  4  Dov.  4  B.  IGO;  Haydcn  v. 
Binncy,  7  Gray.  41G;  Vcach  r.  Adams,  61  Cal.  Gil;  Ucald  r.  Sargeant,  15  Vt. 
006;  40  Am.  Dec.  094. 


§  V2:>        PERSONAL  PROrERTY  SUBJECT  TO  EXECUTION.    296 

liable  io  cwvuUon  tor  his  individual  debts.'  In  New 
Yelk,  the  interest  of  a  special  or  liiuitrd  jKiitiuT  is  a 
mere  chose  in  action,  and  is  not  subject  to  execution." 
In  Georgia,  tlie  interest  of  a  co[)artner  may,  by 
statute,  be  reached  only  by  garnisliment.^  In  Iowa, 
the  nunuuT  of  K-vyin;^  u[ton  the  interest  of  a  jiartner 
has  also  been  provided  for  by  statute.*  Confessedly,  a 
sale  under  an  execution  against  one  partner  docs  not 
divest  the  title  of  tlie  partnership  in  tlic  j)roj)erty.'  It 
transfers  only  such  interest  us  may  remain  in  the 
judgment  debtor  upon  the  settlement  and  adjustment 
of  the  alfairs  of  the  partnership.  As  the  rights  of 
the  partnership  are  paramount,  it  would  seem  that  they 
would  preclude  the  officer  serving  the  writ  from  taking 
the  property  into  his  exclusive  possession,  even  for  the 
purposes  of  levy  and  sale ;  and  this  view  has  been 
maintained  with  great  force  in  several  decisions  pro- 
nounced in  the  supreme  court  of  New  Hampshire.^ 
The  authorities  elsewhere  are  almost  unanimous  in 
affirming  that  the  officer  may,  in  levying  on  the 
interest  of  a  partner,  assume  exclusive  possession  of 
the  chattels  of  the  firm,  and  retain  it  until  the  sale.® 

'  Parsoos  oa  Partnership,  352;  Kuox  v.  Summers,  4  Yeates,  477;  Watson 
r.  Gabby,  18  B.  Mon.  058;  Haskins  r.  Everett,  4  SneeJ,  531;  Wilson  v.  Conine, 
2  Johns.  280;  Walsh  t'.  Adams,  3  Denio,  125;  Jones  v.  Stratton,  32  111.  202; 
Nixon  V.  Nash,  12  Ohio  St.  G47;  80  Am.  Dec.  390;  Kuerr  v.  Hoffman,  G5  Pa. 
St.  I2G;  Scrughamr.  Carter,  12  Wend.  131;  Shaw  v.  McDonald.  21  Ga.  395; 
Chapman  r.  Knops,  3  Bos.  &  P.  289;  Holmes  v.  Mentze,  4  Ad.  &  E.  131; 
Dou;;las  V.  Winslow,  20  Mo.  90;  Dow  ?'.  Sayward,  12  N.  H.  271;  Moody  i'. 
Payne,  2  Johns.  Ch.  548;  Burgess  v.  Atkins,  5  Blackf.  337;  Jones  v.  Thompson, 
12  Cat  191. 

*  Harris  v.  Murray,  28  N.  Y.  574;  8G  Am.  Dec.  208. 

*  Willis  V.  Henderson,  43  Ga.  325;  Anderson  v.  Cheoney,  51  Ga.  372. 

*  Pkichards  t'.  Haines,  30  Iowa,  574;  Code  of  Iowa,  sec.  3291. 

*  Gibson  r.  Stevens,  7  N.  H.  .352;  Garvin  v.  Paul,  47  N.  H.  158;  Morrison 
V.  Blotlgett,  8  N.  H.  238;  29  Am.  Dec.  05.3,  and  note;  Tread  well  v.  Brown,  43 
N.  H.  290. 

*  Clark  r.  Gushing,  52  Cal.  017;  Saunders  v.  BarUett,  12HeiHk.  317;  Branch 
r.  WuKiuian,  51  Ind.  3;  De  Forest  v.  Miller,  42  Tex.  34;  Atkins  v.  Saxton,  77 


C97  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  125 

It  is  also  undoubted  that  the  interest  subject  to  exe- 
cution is,  at  least  in  equity,  in  no  respect  greater 
than  that  held  b}'  the  defendant;  that  it  is  subject  to 
the  paramount  claims  against  the  partnership,  and 
is,  in  fact,  nothing  beyond  the  right  to  demand  an 
accounting,  and  to  share  in  the  surplus  that  may  re- 
main after  all  the  partnership  obligations  have  been 
discharged. ^ 

Whether  the  levy  can  be  upon  any  specific  part  of 
the  goods  of  the  firm,  and  whether  by  the  sale  the 
purchaser  acquires  any  interest  in  the  property  sold, 
beyond  the  right  to  call  for  an  accounting,  are  ques- 
tions upon  which  the  authorities  are  not  agreed.  The 
earlier  cases  were  determined  when  partnerships  were 
regarded  as  mere  co-tenancies.  Hence  those  cases,  and 
such  modern  cases  as  have  been  controlled  by  them, 
place  sales  under  execution  for  the  separate  debt  of  a 
copartner  very  much  on  the  same  ground  as  a  sale  for 
the  separate  debt  of  a  co-tenant.  Therefore,  according 
to  this  view,  an  oflicer  can,  under  such  an  execution, 
levy  upon   a  part  as  well  as  upon  the  whole  of  the 

N.  Y.  195;  Marker  v.  Johnson.  66  Me.  21;  Parker  v.  Wright,  06  Me.  392; 
United  States  r.  Williams,  4  McLean,  236;  Bachurst  v.  Cliukanl,  1  Show.  173; 
Mayhew  v.  Herrick,  7  Com.  B.  229;  Newhall  v.  Buckingham,  14  111.  405; 
Parker  v.  Pistor,  3  Bos.  &  P.  288;  Pope  v.  Haman,  Comh.  217;  Heydou  v. 
Heydon,  Salk.  392;  White  v.  Jones,  38  111.  159;  Johnson  v.  Evans,  7  Man. 
&  G.  240;  Davis  v.  \Vhite,  1  Houst.  228;  Andrews  v.  Keitli,  31  Ala.  722; 
Smith  V.  Orser,  42  N.  Y.  132. 

'  Eighth  N.  B.  V.  Fitch,  49  N.  Y.  539;  Clagctt  v.  Kilhourne,  1  Black,  346; 
Lyndon  r.  (iorham,  1  (iall.  307;  Clian.llcr  ?•.  Lincoln,  52  111.  74;  Deal  v.  Bogue, 

20  Pa.  St.  22S;  57  Am.  Dec.  702;  Bowman  v.  O'Reilly,  31  Miss.  201;  Atwood 
r  Impson,  20  N.  J.  Eq.  150;  Dutton  r.  Morri.'^cm,  17  Ves.  193;  '  Ro.se,  213; 
Garhett  v.  Vealo,  5  Q.  B.  408;  8  Jur.  335;  Dru.  &  M.  458;  Rol.insoa  r.  Tevia, 
38Cal.  Oil;  Skipp  v.  Ilarwood,  2  Swans.  580;  In  matter  of  Wait.  1  Jacoh  & 
W.  005;  Fdloy  r.  Phelj)**,  18  Conn.  294;  Taylor  r.  Fields,  4  Ves.  3%;  Hankey 
V.  Garratt,  1   Vuh.  Jr.  239;  Prico  r.  Hunt,  II   Ired.  42;  Marston  r.  Dewberry, 

21  La.  Ann.  518;  Knox  r.  Schepler,  2  IIill  (S.  C),  595;  Jarvis  v.  Hyer,  4  Dov. 
307;  B-arher  ,:  B;ink,  9  Conn.  407;  United  St,itea  i\  Hack,  8  Pet.  271;  Picrco 
V.  Jackson,  6  Mass.  242. 


§  l':5        PERSONAL  PUOrERTY  SUBJECT  TO  EXECUTION.  298 

chattels  i^\'  a  linn;'  and  can.  liy  liis  s;iK\  transfer  a 
nioioty  of  tlie  lei:^al  title,  to<:^etlu'r  witli  the  iiL;lit  to 
take  ant!  liold  possession  a<jcaiust  the  other  partners,^ 
leavin;4  tliom  without  an\-  other  means  of  enforcing  the 
rights  of  the  partnership  than  by  i)roceeding.s  in  chan- 
cery. But  the  courts  have  gradually  progressed  toward 
a  realization  of  the  true  nature  of  partnerships,  and 
have  therefore  come  to  understand  that  they  are 
materially  ditlerent  from  co-tenancies.  A  copartner 
has  no  right  to  any  specific  chattel  belonging  to  the 
firm,  nor  lias  he  auv  riijht,  as  acfainst  the  firm,  to  take 
or  hold  exclusive  possession  of  any  such  chattel.  The 
real  ownership  of  all  the  chattels  is  vested  in  the  firm; 
the  interest  of  each  partner  is  merely  a  right  to  share 
iu  the  proceeds  of  those  chattels  after  all  the  part- 
nership obligations  have  been  satisfied.  Upon  what 
principle  can  the  purchaser  at  an  execution  sale  be 
sustained  in  the  exercise  of  rij^hts  to  which  the  defend- 
ant  was  never  entitled?  Clearl}^  upon  no  principle 
"whatever.  The  precedents  made  at  an  early  day, 
when  the  law  of  partnership  was  imperfectly  under- 
stood, are  losing  tlieir  force  as  authorities.  Tlicir  place 
is  being  supplied  by  a  line  of  decisions,  destined  to  grow 
in  favor  and  number,  declaring  that  the  creditor  of  an 
individual  partner  cannot  sell  any  specific  article,  but 
only  the  partner's  interest  in  the  whole  of  the  partner- 
ship assets,^  and  that  the  purchaser  does  not  acquire 

'  Wilca  r  M  i.Mox,  20  Mo.  77;  Fogg  v.  Laury,  08  Me.  78;  28  Am.  Rep.  19. 

»Walih  r.  A.Jams,  3  Deaio,  125;  Berry  r.  Kelly,  4  Robt.  100;  Phillips  u. 
Ov)k,  24  Wen.l.  380;  H  iskioa  v.  Everett,  4  Snecd.  531. 

*  Thomas  r.  Lu^k,  13  La.  Ann.  277;  Vandiko  v.  Rosakam,  07  Pa.  St.  3.30; 
Atwoo.l  r.  Meredith,  37  Miss.  0.35;  Whigham's  Appeal,  03  Pa.  St.  194;  Pitt- 
man  r.  Rohicheau,  14  I.A.  Aim.  108;  Serriiie  r.  Briggs,  31  Mich.  443;  Haynes  v. 
Knowles,  .3<i  Mich.  407;  Levy  r.  Cowan,  27  La.  Ann.  550;  Doner  v.  Stauffer, 
1  Pen.  &  W.  198;  21  Am.  Dec.  370;  Richard  r.  Allen,  117  Pa.  St.  199.  In  the 
buit-named  cane  the  gooda  of  a  partoeriihJp  were  levied  upoa  and  sold  under  two 


299  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §125 

the  right  to  hold  possession  of  the  propert}^  purchased, 
as  against  the  other  members  of  the  firm,  but  only  an 

several  writs  against  the  two  members  thereof  individually,  and  subse- 
quentl}-  under  another  writ  against  the  partnership.  The  plaintiffs  claimed 
tinder  the  first  levy  and  the  defendants  under  the  second.  In  disposing  of 
the  case  the  court  said:  "We  may  admit,  for  the  purposes  of  this  ca^e,  how- 
ever doubtful  the  proposition,  that  a  constable  may  levy  an  execution  which  he 
holds  against  an  indivi^lual  member  of  a  firm  on  his  interest  in  the  goods  and 
assets  of  the  partnership;  yet,  even  with  this  admission,  the  case  in  hand  is  by 
no  means  determined  in  favor  of  the  plaintiffs  iu  error.  The  constable's  levies 
were  necessarily  confined  to  the  property  of  the  individuals  against  whom  they 
were  issued,  qua  individuals,  and  his  seizure  of  the  goods  of  the  firm  was  a 
trespass,  and  legally  void.  A  partnership  is  a  distinct  entity,  and  the  joint 
effects  belong  to  it,  and  not  to  the  several  partners:  Doner  v.  Stauffer,  1  Pen. 
&  W.  198.  It  follows  that  the  levies  on  the  goods  of  the  firm  of  Sargent  and 
Holt,  for  the  several  debts  of  the  individual  members  of  that  firm,  created  no 
lien  upon  those  goods,  and  were,  in  fact,  as  nugatory  as  though  levied  upon 
the  property  of  a  stranger.  Admittedly,  had  the  sale  been  on  but  one  of  the 
writs,  the  purchaser  would  have  taken  no  right  in  the  firm  assets,  but  only 
the  right  to  compel  an  account  with  the  continuing  partner,  and  such  also  is 
the  purport  of  the  first  section  of  the  act  of  the  8th  of  April,  1873.  If,  how- 
ever, a  levy  on  the  interest  of  a  single  partner  would  have  created  no  lien  ou 
the  goods  in  controversy,  we  cannot  see  how  a  levy  on  the  individual  interests 
of  both  couKl  alter  tlie  legal  aspect  of  affairs,  for  in  either  case  those  iateresta 
were  several,  and  the  firm  rights  remamed  unaffected.  The  action  of  the  con- 
stable did  not  deprive  the  partnership  of  the  control  of  its  own  goods;  the  sev- 
eral partners  still  continued  to  bu  agents  of  the  firm,  and  it  would  not  be 
proper  to  say  that  a  sale  by  both  or  either  of  them,  as  such,  woidd  not  have 
passed  a  good  title  to  a  purchaser  of  those  goods  regardless  of  tiie  levies. 
But  the  sheriff's  levy,  made  by  virtue  of  an  execution  issued  on  a  judgment 
against  the  partnership,  was  a  lien  on  the  go8ds  themselves,  and  his  sale  was 
not  the  disposition  of  a  mere  right  in  the  firm,  but  of  the  property  itself,  and 
therefore  vested  in  his  vendee  the  absolute  ownership  thereof,  leaving  to  the 
constable's  vendees  the  right  to  have  so  much  of  the  proceeds  of  the  sale  as  re- 
mained after  the  satisfaction  of  the  sheriff's  writ.  Had  there  been  no  levy  by 
the  sheriff  on  the  property  in  question  until  after  the  sale  to  the  plaintiffs, 
their  case  would  have  been  different;  in  that  event,  the  interest  of  both  parties 
having  been  di.sposed  of,  there  would  thereafter  have  been  no  partnersliip  in 
existence,  lience  no  firm  goods  on  which  to  levy.  Doner  v.  Stauffer,  mtpra. 
The  equities  of  partnership  creditors  depend  on  the  equities  of  tiie  partners, 
and  ail  lon^,'  jw  a  partner  continues  to  have  an  interest  in  the  partnersliip,  so 
long  do  the  equities  of  the  firm  creditors  continue;  but  when  the  rights  of  all 
the  partners  have  been  disposed  of,  cither  by  judicial  or  private  sale,  neither 
partnership  nor  partnership  rights  remain;  and  consequently  they,  the  cred- 
itorn,  have  no  longer  anything  to  which  they  can  look  for  a  satisfaction  of  their 
clainifl,  except  imlividual  responsibility.  But  as  a  Imy  on  the  right  of  a  part- 
ner neither  divests  that  right  uor  dissolves  the  partnership,  clearly  the  power 


§!•::.  a      rKKSONAL  TROrERTY  SUBJECT  TO  EXECUTION.  300 

intoivst  ill  tlio  procvods  after  the  business  of  the  linn 
shall  have  K-en  settlevl.' 

Thoui^h  the  rij^ht  of  the  oflieer  to  seize  the  property 
of  a  partnership  under  an  execution  against  one  of  its 
members  is  eonceiled,  it  nuist  be  exercisetl  "as  far  as 
possible  in  harmony  witli  tlie  ri<]^hts  of  the  other  i)art- 
iiers,  ami  not  in  hostility  to  them.  Jli^  power  to  take 
and  deliver  possession  of  the  corpus  of  the  property  is 
merely  incitlental  to  the  right  to  reach  the  interest  of 
the  debtor,  and  is  to  be  exercised  only  as  a  means  to 
that  end.  Consequently,  if  he  exceeds  that  limit,  and 
undertakes  to  interfere  with  the  rights  of  the  other 
partners  to  a  greater  extent  than  is  necessary  to  reach 
the  interest  of  the  debtor  partner,  and  dispose  of  it,  as, 
when  instead  of  selling  the  interest  of  the  debtor  part- 
ner he  undertakes  to  sell  the  entire  property,  though 
his  act  is  nugatory,  such  interference  renders  him  liable 
as  a  trespasser '«6  initio.'''^ 

§  125  a.    Property  Subject  to  Execution  in  Equity. 

—  Under  statutes  now  in  force  in  England  and  in  the 

of  the  firm  to  di-spose  of  its  own  gooils  is  not  thereby  affected,  and  as  a  conse- 
quence the  equities  of  the  fir»  creditors  remain.  That  tlie  judgment  was 
confessed  ljy  the  firm  subsequently  to  the  levies  by  the  constable,  oven  though 
the  debt  for  which  it  was  given  was  contracted  after  those  levies,  is  not  of 
material  consequence;  it  was,  nevertheless,  ailebt  of  the  firm,  for  the  payment 
of  whicli  the  goods  miglit  liave  been  assigned,  or  converted  into  cash;  and  as 
the  L.vies  by  the  constable  created  no  lien,  tlie  [troperty  was  entirely  free  for 
seizure  on  the  execution  against  the  partnership." 

»  Deal  r.  Bogue,  20  Pa.  St.  228;  57  Am.  Dec.  702;  Reinheimer  v.  Hem- 
ingway, 3o  Pa.  St.  432;  Crane  ?•.  French,  1  Wend.  311;  GiI)son  v.  Stevens, 
7  N.  U.  352;  Garvin  v.  Paul,  47  N.  H.  158;  Clagett  r.  Kilbourne,  1  Black,  346; 
Sutchffer.  Dohrman,  18  Ohio,  181;  51  Am.  Dec.  450;  Sitler  r.  Walker,  Free- 
man Ch.  77;  Bcvan  r.  AUee,  3  Harr.  (Del.)  80;  Parsons  on  Partnership,  352;  3 
.Southern  L.  R.  250-273.  In  Alabama,  it  seems  that  the  purclia.ser  is  entitled 
to  be  in  possession  jointly  with  the  partners,  but  not  to  their  exclusion.  An- 
drews r.  Keith.  34  Ala.  722. 

»  Atkins  r.  Saxton,  77  N.  Y.  190;  Neary  v.  Cahill,  20  111.  214;  Waddell  V, 
Cook,  2  Hdl,  47;  37  Am.  Dec.  372. 


301  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     §  125  a 

United  States,  writs  o^  fieri  facias  maybe  issued  to  en- 
force decrees  directing  the  paj^ment  of  specific  sums 
of  money.     These  writs  may  unquestionably  be  levied 
upon  any  property  which  would  be   subject  to  levy 
under  like  writs  issued  upon  judgments  at  law.    Courts 
of  law  forn)erly  took  no  notice  of  mere  equitable  es- 
tates and  interests,  and  hence  they  were  generally  not 
subject  to  execution  at  law.     These  estates  and  inter- 
ests were,  however,  always  regarded  in  equity.    In  fact, 
a  large  portion  of  its  jurisdiction  was  devoted  to  their 
consideration  and  maintenance,  and  for  most  purposes 
they  were,  in  its  tribunals,  not  less  potent  than  though 
united  with  the  legal  title.     Will  such  estates  and  in- 
terests be  ignored,  when  i)roceeding  under  s,  fieri  facias 
issued  upon  a  decree  in  chancery,  in  those  states  where 
they  are  not  subject  to  execution  at  law?     We  have 
discovered  no  case  considering  this  question.     Unless 
the  statute  conferring  the  power  to  use  this  writ  in 
enforcing  decrees  expressly  restricts  its  use  to  cases 
where  it  might  be  employed  at  law,  we  think  that  it 
ought  to  be  adjudged  to  authorize  the  seizure  and  sale 
of  property  of  which  the  debtor  has  the  equitable 
title,  and  which  would  be  subject  to  execution  at  law 
if  he  were  also  vested  with  the  legal  title. 

In  many  instances,  specific  property  is  directed  to 
be  sold  by  the  decree.  In  these  cases,  the  officer  con^ 
ductmg  the  sale,  a!id  intending  purchasers  thereat, 
need  only  consider  the  directions  of  the  decree,  if  ju- 
risdiction has  been  obtained  over  all  the  parties  inter- 
ested in  tlio  pro])erty  ordered  to  be  sold.  Whatsoever 
has  been  decreed  to  be  sold,  and  no  more,  is  subject 
to  sale. 

According  to  tlic  practice  of  the  court  of  chancery 
prior  to  the  introduction  of  any  statutory  innovations, 


§I-.\%a      PERSONAL  PROPERTY   SUBJECT  TO   IvXECUTIOX.  302 

v.o  property  was  subject  to  exicutloii  In  ((juity,  in  the 
Bonse  in  which  those  terms  were  uiHlerstcK)cl  at  hiw. 
It  is  true  that  scipicstrators  wtn'  autliorizcd  to  take 
possession  of  certain  property  of  the  (Iclc-nilant.  A 
commission  or  writ  <>f  secpiestration  was  said  not  to 
he  a  writ  of  execution,  but  a  mere  process  to  ])unish 
a  contempt  of  court.'  While  it  nominally  issueil  to 
punish  contempts,  it  was  an  ellieient  means  of  en- 
forcinj;!^  decrees,  and  therefore  answered  the  purposes 
of  writs  t>f  execution."  The  issue  of  the  wiit  did  not 
create  any  lien  on  any  property,  nor  give  the  seques- 
trators any  precedence  over  any  bona  fide  lessee,  pur- 
chaser, or  encumhrancer  thereof,  whose  title  accrued 
at  any  time  prior  to  their  taking  possession.*'  Prior 
encumbrances  were  respected  if  made  in  gootl  i'aith;* 
but  transfers  and  encumbrances  made  for  the  ])ur[)ose 
of  rendering  the  sequestration  abortive,  to  one  having 
notice  of  this  purpose,  were  disregarded.^  With  re- 
spect to  land-;,  it  is  quite  certain  that  the  sequestrators 
acquired  no  title,  and  hence  could  make  no  sale."  They 
v.'ere,  however,  b}'  their  writ  authorized  to  take  posses- 
sion of  the  defendant's  lands,  tenements,  goods,  and 
chattels,  and  to  receive  the  rents  and  profits  thereof. 
V/hen  these  rents  and  profits  were  payable  in  kind, 
or  when  the  sequestrators  received  the  natural  pro- 
duce of  the  lands  seized,  an  order  of  court  might  be 

>  Brune  r.  Robinson,  7  I.  R.  £({.  188. 

'  RcdJingfield  r.  Zouch,  2  Freem.  1G8;  Hide  r.  Petit,  '2  Freem.  125;  1  Ch. 
Caa.91. 

'  Vicars  r.  ColcclouRh,  5  Brown  Pari.  C.  31 ;  Ex  parte  Nelson,  L.  II.  14  Ch. 
D.  41:  49  L.  J.  Bankruptcy,  44;  42  L.  T.  .389;  28  Week.  Rep.  554. 

*  Burnc  r.  Rohinsoti,  7  I.  R.  Eq.  188;  Tatham  r.  Parker,  1  Snialc  &  CJ.  506; 
17  Jur.  929;  22  L.  .1.  Ch.  20.3. 

*  Ward  r.  B.oth.  L.  R.  14  E.j.  lO.",;  41  L.  .1.  Ch.  72'.t;  27  L.  T.,  N.  S.,  304; 
20  Week.  Rep.  880;  Coulstoa  r.  Ganliiier,  .3  Swans.  279,  note. 

*  Coati  r.  Elliott,  23  Tex.  GO^J;  Shaw  r.  Wright,  4  Ven.  22;  Sutton  v.  Stone, 
1  Dick,  107;  Foster  r.  Towuabcnd,  2  Abb.  N.  C.  29;  08  N.  Y.  203. 


303  PER^OXAL  PROPERTY  SUBJECT  TO  EXECUTION.     §  125  a 

obtained  for  the  sale  of  such  chattels/  and  perhaps 
other  personal  property  of  a  party  in  contempt  for 
the  non-pa^-ment  of  money  might  be  ordered  sold.' 
All  property  of  a  tangible  character,  of  which  the  se- 
questrators could  obtain  possession  without  suit,  was 
subject  to  sequestration,  and  they  might  open  boxes 
and  rooms  which  were  locked  to  obtain  possession  of 
the  goods  therein.^  Property  seized  by  them  thereby 
became  in  the  custody  of  the  law,  and  any  interference 
with  their  possession  not  authorized  by  the  court  was 
punished  as  a  contempt.*  If  the  property  seized  was 
claimed  by  a  stranger  to  the  writ,  it  was  necessary  for 
him  to  come  before  the  court  and  present  his  claim; 
and  if  convinced  of  its  validit}^,  the  court  would  order 
the  restoration  of  the  property,  and  sometimes  award 
damages  for  its  detention/  Where  moneys  were  due 
for  rents  of  lands  of  the  defendant,  subject  to  the 
sequestration,  they  might  be  ordered  paid  to  the  se- 
questrators.^ Where  funds  or  moneys  are  under  the 
control  of  the  court,  which  the  defendant  is  entitled 
to  receive,  they  may  be  subjected  to  the  sequestration 
by  obtaining  an  order  of  the  court  for  tlieir  payment 
to  the  sequestrators.'  The  pay^f  a  public  officer,  for 
which  the  government  is  entitled  to  any  services,  is, 
on  principles  of  public  policy,  not  subject  to  seques- 

»  Shaw  r.  \Vright,  3  Vcs.  22. 

»  Cavil  r.  .Siniili,  3  Brown  Cli.  .302;  In  re  Rush,  L.  R.  10  E.j.  442;  18  Week. 
Rep.  417;  22  L.  T..  N.  S.,  110;  Cowpcr  r.  Tayh.r,  10  Sim.  314. 

'  rclhani  V.  Newcastle,  3  Swans.  21K),  note;  White  t>.  (Jeraedt,  1  Eilw.  Ch. 
3.3C. 

♦  Angel  V.  Sutith,  9  V'ca.  3.%;  Copeland  r.  Mapc,  2  Ball  k  B.  387. 

'  Francklyn  r.  Colhoun,  3  Swans.  310;  Pclhani  v.  Neweaatlo,  3  Swans.  290, 
note. 

"  Wilnon  V.  Metcalfe,  8  L.  J.  Ch.  331 ;  1  Beav.  203. 

'  Clay.lon  v.  Fineh,  L.  R.  1.3  Eq.  20<);  Conn  r.  Carlan.l.  L.  R.  9  Ch.  101;  22 
Week.  R-  p.  17.");  SUlo  v.  Huline,  L.  K.  18  Ch.  D.  053;  OO  L.  J.  Ch.  729;  46 
L.  T.,  N.  S.,  270;  30  Week.  llcp.  28. 


§  12G        rERSON'AT.  rROPERTV  SURIECT  TO   i:Xi:CUTION.  304 

tration.'  IViisions  u^rantcd  i'or  p:ist  si>!'\  icis  may  be 
secuivcl  to  the  .soqiiostnitors  by  obtaiiiiipj;  an  injunc- 
tion ri'strainiiiij^  tlio  dclondant  from  roccivin;j;  thein." 
Chosos  in  action  bavo  somotinies  been  spoken  of  by 
the  courts  as  subjects  of  sequestration;"'  but  tliey  are 
60  to  a  very  liinitrd  e\tiMit.  If  tin-  [xison  from  \\lu)ni 
they  are  owin^r  is  a  party  to  the  suit,  or  otherwise 
befi>re  tlie  court,  or  if  he  voluntaril}'  appears  and  as- 
sents tliereto,  an  order  may  \n;  made  direetiuij^  him  to 
pay  to  the  sequestrators  tlic  amount  due  from  lilm  to 
the  defendant.  In  all  other  cases  no  such  oixlcr  will 
be  entered,  and  the  chose  in  action  cannot  be  subjected 
to  the  sequestration.* 

DEFENDANTS  WHOSE  PROPERTY  CANNOT  BE  LEVIED  AND  SOLD. 

§  126.  Property  of  a  County  or  of  a  Municipal  Cor- 
poration.—  We  have  shown,  in  a  preceding  section,'' 
that  it  was,  under  ordinary  circumstances,  erroneous  to 
award  an  execution  against  a  county  or  a  municipal 
corporation.  Where  this  rule  of  law  prevails,  it  is  clear 
that  no  propertj'  of  a  county  or  a  city  is  subject  to 
seizure  under  execution;  for,  in  contemplation  of  law, 
there  can  be  no  valid* execution.  Thus  in  California  a 
suit  was  regularly  prosecuted  against  a  parcel  of  land 
for  delinquent  taxes  thereon,  and  a  judgment  in  rem 
obtained,     A  sale  havini;  Ijecn  made  under  this  iudcr- 

O  JO 

>  McCarthy  v.  Goold,  1  Ball  &  B.  389;  Fenton  v.  Lowther,  1  Cox,  315; 
Spooatr  r.  Payne,  1  De  Gjx,  M.  &  G.  3S8. 

'  McCarthy  r.  GooM,  1  Ball  &  B.  3S9;  Willcock  v.  Terrell,  3  Ex.  D.  3-23; 
Dent  r.  Dent,  L.  R.  1  P.  &  D.  300. 

»  WiUon  V.  Metcalfe,  1  Beav,  203;  8  L.  J.  Ch.  .331;  Grew  v.  Breed,  12  Met. 
303;  White  v.  f  Jeraedt,  1  Edw   Ch.  330. 

♦  Crispin  v.  Cumano,  L.  R.  1  P.  &  D.  022;  Johnson  r.  Cleppendalc,  2  Sim. 
55;  McCarthy  r.  Goold,  1  Ball  &  B.  389. 

*  City  of  Blooinington  r.  Bfokaw,  77  111.  194;  City  of  Morrison  v.  Ilinkson, 
67  111.  567.     See  g  22. 


3C5  PEP.SONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  126 

meat,  the  purchaser  applied  to  be  let  into  possession  of 
the  property.  He  was  resisted,  on  the  ground  that 
the  land  belonged  to  a  cit}',  and  was  used  by  it  as  a 
public  cemetery.  The  court  held  the  tax  suit  unauthor- 
ized, and  the  judgment  therein  coram  non  judice;  and 
that  the  sale  was,  therefore,  void.^  The  question 
whether  or  not  a  parcel  of  property  belonging  to  a 
municipal  or  other  public  corporation  is  subject  to  exe- 
cution must  be  determined  by  ascertaining  the  uses  and 
purposes  for  which  such  property  is  held.  Sucii 
a  corporation  is  generally  either  a  part  of  the  govern- 
ment or  an  instrumentality  through  which  some  por- 
tion of  the  functions  of  government  are  exercised.  It 
may  acquire  and  use  property  for  the  purposes  of  public 
schools,  hospitals,  prisons,  courts,  and  for  divers  other 
uses  in  which  the  public  is  concerned,  its  welfare  pro- 
moted, and  the  functions  of  government  discharged. 
When  held  for  such  purposes,  the  property  does  not 
partake  of  the  character  of  private  ownership,  and  is 
clearly  not  subject  to  execution."  It  would  be  intoler- 
able that  these  instrumentalities  should  be  seized  and 
the  functions  of  government  either  suspended  or  de- 
stroyed. Nor  would  a  mere  change  in  the  form  of  the 
property  subject  it  to  execution.  Hence  there  cannot 
be  any  garnishment  of  moneys  due  a  municipality  for 
insurance  upon  a  school-house  which  has  been  destroyed 
by  fire.^  Blocks  of  land  used  by  a  city  for  wharf  and 
levee  purposes,  and  upon  which  charges  are  made  l)y 
the  city^for  wharfage,  are  not  subject  to  execution;  for 
the  providing  of  such  wharves  and  the  collecting  of 

»  People  f.  Doe  (i.  10.34,  .30  Cal.  220. 

'SUto  V.  Ticdcmaii,  09  Mo.  HOO;  Xi  Am.  Rop.  498;  floooli  v.  Gregory.  05 
N.  C.  142;  Vinlun  v.  FiHliI)ack,  9  111.  .App.  82;  Lyon  v.  Elizabeth,  43  N.  J.  L. 
l.^S;  City  of  Davenport  i:  V.  M.  &  F.  I.  Co.,  17  Iowa,  270. 

»  FlfiHhfl  V.  Hii;litower,  02  Ga.  324 
Vol.  I.  — J) 


§  IJii        PERSONAL  ruOPERTY   SUIUECT  TO  EXECUTION.  306 

tolls  tlu>roon  ari>  inattiM-s  of  ^ovcnuiuMital  rcsj^iilation.^ 
Nor  is  it  luHH^ssary  to  txrmpt  tlio  |)ro[)('ity  ol'  a  city 
that  It  \)v  tlioti  ill  actual  pulilic  use,  if  it  has  formerly 
lieen  so  usotl,  for  it  will  ho  j>resuuiod  to  he  iuteuded  for 
such  use  until  the  eontrarv  is  sliown."  "  J.*roiterty  held 
for  jmhlie  uses,  sueh  as  puhlie  huildiiis:]^s,  streets,  squares, 
parks.  [M'onu'nades,  wliarvrs,  laudiiiLij-plaees,  fire-en- 
gines, hose  and  hose-earriages,  engine-houses,  engineer- 
ing instruments,  and  generally  everything  held  for 
jj^overn mental  purposes,  cannot  he  suhjceted  to  the  pay- 
ment of  the  debts  of  the  city.  Its  public  character 
forbids  such  an  ai)pr(.)i>riation."^  And  this  rule  has 
been  held  to  extend  to  judgments  obtained  under  the 
mechanics'  lien  law,  for  work  done  and  materials  fur- 
nished toward  the  erection  of  a  public  school-house.* 
This  immunity  from  execution  extends  to  all  the  i)ublie 
revenues  of  a  city,  whether  derived  from  tuxes  or 
other  sources;  for  to  permit  their  seizure  woidd  neces- 
sarily suspend  the  governmental  functions  of  the  city 
almost  as  eftectually  as  tlie  repeal  of  its  charter.^  Nor 
do  such  revenues  become  subject  to  seizure,  because 
deposited  in  a  private  bank  or  other  depository."  This 
is  manifestly  so,  because  it  is  the  purpose  of  the  funds, 
and  not  their  situation,  which  withdraws  them  from 
execution.     Pueblo    lands   held    by  towns   and   cities 

>  Klein  r.  New  Orleans,  99  U.  S.  149. 

'  Curry  v.  Savamiah,  0-1  (Ja.  290;  37  Am.  Rep.  74;  21  All).  L.  J.  34. 

»  Meriwether  r.  Garrett,  10*2  U.  S.  501. 

♦  Brinckerhoff  r.  Board  of  Ivlueation,  G  Abb.  Pr.,  N.  S..  428;  37  How.  Pr. 
499;  2  Daly,  443;  Loring  r.  Small,  50  low.a,  571;  .S2  Am.  Rep.  13G;  .Clia<lwick 
r.  Colfax,  51  Iowa,  70;  Dillon  on  Municipal  Coqjorations,  sec.  577. 

*  Brown  r.  Gates,  15  W.  Va.  131;  Eilgerton  v.  Municipality,  1  La.  Ann. 
435;  Municipality  r.  Hart,  C  La.  Ann.  570;  N.  0.  &  C.  R.  R.  v.  Municipality, 
7  La.  Ann.  14S;  Police  Jury  r.  Michel,  4  La.  Ann.  84;  City  of  Chicago  v.  Hal- 
«ey,  25  111.  595. 

•  Pet«rkin  r.  New  Orleans,  2  Woods,  101. 


307  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION,     §  126  a 

under  the  Mexican  laws,  in  trust  for  their  inhabitants, 
are  not  subject  to  execution  against  such  towns  and 
cities,  because  they  have  no  beneficial  interest  therein.^ 
In  some  of  the  states,  certain  property  belonging  to 
cities  has  been  decided  to  be  subject  to  execution,  on 
the  ground  that  it  was  not  held  or  used  for  govern- 
mental purposes,  and  that  its  seizure  would  not  suspend 
or  impair  the  exercise  of  the  governmental  functions 
delegated  to  such  cities.^  Thus  in  California  lands 
were  held  subject  to  execution  which  were  granted  to 
a  city  by  the  state,  with  a  proviso  that  the  city  should 
"pay  into  the  state  treasury,  within  twenty  days  after 
their  receipt  twenty- five  per  cent  of  all  monej^s  arising 
from  the  sale  or  other  disposition  of  the  propert}'."  ^ 

§  126  a.  The  Property  of  Certain  Quasi  Public 
Corporations  is  held  by  them  for  the  purposes  of 
private  gain,  and  has,  so  far  as  its  ownership  is  con- 
cerned, all  the  advantages  of  private  property;  but 
such  corporations  are  generally  created  and  given  espe- 
cial privileges,  wnth  a  view  to  the  advantages  which 
may  accrue  to  the  public.  The  public  is,  therefore, 
regarded  as  having  an  interest  in  the  continued  per- 
formance of  the  corporate  duties;  and  any  alienation, 
whether  voluntary  or  involuntary,  of  the  franchises  of 
the  corporation,  or  of  the  property  necessary  to  the 

»  Hart  r.  Burnett,  15  Cal.  530;  Townseud  r.  Grcely,  5  Wall.  326. 

»  City  of  New  Orleans  v.  H.  M.  I.  Co.,  23  La.  Ann.  61;  City  of  New  Orleana 
V.  Morria,  3  Woods,  103. 

»  Smith  r.  Mor.sc,  2  Cal.  524;  HoUaday  i-.  Frishie,  15  Cal.  530;  Wheeler  v. 
Miller,  16  Cal.  124.  See  also  Darlington  v.  Mayor  of  N.  Y-,  31  N.  Y.  164; 
Lyell  r.  Supcrvisora  of  St.  Ciair  Co.,  3  McLean,  580.  It  is  said  that  the  appa- 
ratiirt  and  fun<U  of  the  Tnctroi)olitan  fire  department  of  New  York  and  Brooklyn 
arc  Buljjcct  to  execution  in  »ati.sfaction  of  judgments  against  tho  department. 
Clariiisy  r.  Metropolitan  Fire  Department,  7  Ahb.  Pr.,  N.  S.,  352;  1  Sweeny, 
224.  In  Alabama  tlio  creditor  of  a  municipal  corporation  may  garnish  moneys 
in  the  hauda  of  a  city  marshal.     Smoot  v.  Hart,  33  Ala.  69. 


i  IJGii     FEllSOMAL  rilOPKRTY  SURJKtT  TO  EXECUTION.  308 

exciviso  of  surli  iVaiichiscs,  is  looked  niton  witli  dis- 
favor, and  in  sonu'  of  tlio  states  lias  lieen  pcrciupto- 
rily  torhidden.  lieiit'o,  if  a  corporation  is  authorized 
to  construct  and  maintain  a  turnpike  or  eanal,  and  to 
collect  tolls  thereon,  neither  the  turnpike,  nor  canal, 
nor  the  toll-houses,  t)r  other  property  indispensalde  to 
the  maintenance  of  such  i-oad  or  eanal,  can  be  sold  un- 
der execution.'  "  Most  [leople  ac(juainted  at  all  with 
corporate  action  understand  that  corporations  other 
than  municipal,  which  are  purely  jiuhlic,  naturally 
divide  into  puMic  and  private  corporations;  that  is, 
into  those  that  are  agencies  of  the  public  directly  affect- 
ing it,  and  tho.se  whicli  atfect  it  indirectl}',  by  adding  to 
its  prosperity  in  developing  its  natural  resources,  or  in 
improving  its  mental  and  moral  iiualities;  of  the  former, 
are  coqiorations  for  the  building  of  bridges,  turnpike 
roads,  canals,  and  the  like.  The  public  is  directly  in- 
terested in  the  results  to  be  produced  by  such  cor- 
porations in  the  facilities  afforded  to  travel,  and  the 
movements  of  trade  and  commerce.  It  is  well  settled 
that  this  use  is  not  to  be  disturbed  by  the  seizure  of 
any  jiart  of  their  property'  essential  to  their  active 
operations,  by  creditors.  They  must  recover  their 
debts  by  sequestering  their  earnings,  allowing  them 
to  progress  with  their  undertaking  to  accommodate 
the  public.""  It  was  therefore  held  that  a  corpora- 
tion for  introducing  water  into  a  town  for  the  use  of 
its  inhabitants  was  a  public  corporation,  and  that  its 
lands  and  buildings  necessary  to  the  enjoyment  of  its 
franchises  were  not  subject  to  execution  nor  to  a  me- 
chanic's lien.^     The  same  rule  applies  to  railroad  cor- 

»  Amniaut  r.  X.  A.  &.  V.  T.  Co.,  13  Serg.  &.  R.  210;  l.'»  Am.  Dec.  593;  Sua- 
qaehanna  C.  Co.  r.  BoDbatn,  0  WatU  &.  S.  27;  42  Am.  Dec.  315. 
»  Foster  r.  Fowler,  GO  Ta.  St.  30. 
»Ib»<L 


309  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     §  126  a 

porations.      "As  to  land  which  has  beea  appropriated 
to  corporate  objects,  and  is  necessary  for  the  full  enjoy- 
ment and  exercise  of  any  franchise  of  the  company, 
whether  acquired  by  purchase  or  by  exercise  of  the 
delegated  power  of  eminent  domain,  the  company  hold 
it  entirely  exempt  from  levy  and  sale;  and  this  on  the 
ground  of  prerogative  or  corporate  immunity,  for  the 
company  can  no  more  ahen  or  transfer  such  land  by 
its  own  act   than    can  a   creditor  by  legal    process; 
but  the  exemption  rests  on  the  public  interests  involved 
in  the  corporation.     Though  the  corporation  in  respect 
to  its  capital  is  private,  yet  it  was  created  to  accom- 
plish objects  in  which  the  public  have  a  direct  inter- 
est, and  its  authority  to  hold  lands  was  conferred  that 
these  objects  might  be  worked  out.     They  shall  not  be 
balked,  therefore,  by  either  the  act  of  the  company  it- 
self or  of  its  creditors.     For  the  sake  of  the  public, 
whatever  is  essential  to  the  corporate  francliises  shall 
be   retained   ])y  the    corporation.     The   only  remedy 
which  the  law  allows  to  creditors  against  property  so 
held  is  sequestration."  ^    Such  was  the  law  of  Pennsyl- 
vania, until  the  statute  of  1870  authorized  the  levy  of 
execution  upon  the  franchises  and  propcrt}^  of  corpora- 
tions.^    In  the  other  states  the  courts  have  conceded 
tliat  franchises  were  not   subject  to  execution  unless 
made  so  by  statute;  but  they  have  hesitated  to  declare 
that  the  exemption  of  franchises  drew  with  it  that  of 
all  other  property  essential  to  their  enjoyment.      That 
the  involuntary  sale  of  such  property  might  render  the 
franchise  unproductive  of  the  public  good,  and  to  some 
extent  thwart  the  juiljlic  will  and   imj)air  the  public 

»  riymoutli  K.  R.   »-.  Col  well,  :\<.)  Pa.  St.  .137;  80  An».   Dec.  620;  aco  also 
Rich.anlsoa  r.  Si!>loy,  II  AlUn,  70<);  S7  Am.  I)<c.  Cm. 

'  rhiladclphia  &,  B.  C.  R.  R.  Co.'s  Api>cal,  70  Pa.  St.  366. 


§  127        rER.<?0\.\L  rROPERTY   SURTECT  TO  F.XECUTION.  310 

\voltari\  has  always  lucn  coiu-cdtil.  ()ii  the  otlior 
liaiul,  tlit>  t\il  ot"  wit Iidrawiiii;-  a  ^ast  and  constantly 
incivasing  amount  of  the  woallli  dI'  the  country  from 
tho  iviU'h  ot'  I'lvditois  has  hcon  letj^ardt'd  as  so  real  and 
serious,  that  the  courts  have  not  «:;iven  it  their  eounte- 
nam-e  or  su|>|)ort;  and  at.  the  jti-esciit  dav  tlic  {U'operty 
of  e«>rporations  other  than  nunil<-i]>al,  tlioui^^h  essential 
to  the  enjoyment  o\^  tlu;  eorj>orate  franehises,  is  almost 
universally  treated  as  subject  to  execution.^  "The 
idea  that  property,  either  real  or  personal,  may  become 
a  mere  incident  to  a  franchise,  so  that  the  franchise 
and  i>roperty  shall  constitute  an  entire  thing,  is  not 
found  in  any  of  the  books  of  the  common  law,  so  far 
as  we  are  aware.  The  riu^ht  to  a  ferry  is  such  a  fran- 
chise, and  the  boats  recjuired  ior  the  transportation  of 
passengers  and  their  property  are  entirely  indispen- 
sable for  the  discharge  of  the  i)ublic  duties  of  the 
owner;  yet  we  have  found  no  instance  in  which  it  has 
been  claimed  that  such  boats  were  exempt  from  seiz- 
ure for  the  owner's  debts."  ^ 

§  127.  Property  of  Married  Women  for  Debts  of 
Husband.  —  Under  the  provisions  of  the  common  law, 
the  giving  of  a  woman  in  marriage,  unless  restricted 
by  antenuptial  agreements,  operated  as  a  gift  of  all 
her  personal  estate,  then  actually  or  constructively  in 
her  po.ssession,  and  of  all  personal  estate  which  might 
thereafter,  during  coverture,  be  acquired  by  her,  and 
reduced  into  her  possession  or  that   of  lier  husband. 

'  Sute  r.  Rives,  5  Ircl.  .300;  Arthur  v.  C.  &  R.  R.  liank,  9  Smedes  &  M. 
431;  48  Am.  Dec.  710;  (Vkj  r.  C.  P.  A  I.  R.  R.,  10  Ohio  St.  .372;  75  Am.  Dec. 
518:  Coo  r.  P<iacock,  14  Ohio  St.  187;  R.  R.  Co.  r.  James,  G  Wall.  750;  Stew- 
art  r.  Jones.  40  Mo.  140;  Ludlow  r.  C.  L.  R.  R  ,  1  Flip.  25. 

»  B.  C.  &  M.  R.  R.  r.  Gilmore,  37  N.  H.  410;  72  Am.  Dec.  336;  Lathrop  v. 
Middleton,  23  Cal.  2.'»7;  83  Am.  Dec.  312. 


311  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  127 

And  her  chattels  were  deemed,  in  law,  to  be  in  her  pos- 
session, for  the  purpose  of  transferring  title  to  the  hus- 
band, by  mere  force  of  his  marital  rights,  in  all  cases 
where  such  chattels  were  not  held  adver.sely  to  her. 
It  was  of  no  consequence  that  they  were  held  by  her 
agent  or  bailee,  or  by  any  other  person  for  her  benefit. 
Where  the  rules  of  the  common  law  still  prevail,  it  is 
evident  that  what  might,  according  to  justice,  or  ac- 
cording to  the  popular  acceptation  of  the  term,  be 
called  the  wife's  chattels,  are,  in  contemplation  of  the 
law,  chattels  in  which  she  has  no  interest,  over  which 
she  can  exercise  no  control,  and  for  the  interference 
with  which  she  has  no  legal  cause  for  complaint.  They 
are  the  property  of  Jier  husband  as  absolutely  as  though 
possessed  by  him  anteriorly  to  his  marriage.^  They 
are  not  to  be  thought  of  as  her  property;  but  may  bo 
seized  and  sold  under  execution  against  him,  and  ap- 
plied to  the  payment  of  his  debts."  Glioses  in  action 
were  not  regarded  as  being  in  the  possession  either  of  the 
husband  or  the  wife.  The  husband  may,  by  collection, 
reduce  them  to  his  possession  and  make  the  proceeds 
his  personal  estate.  If  he  does  not  do  so  during  cover- 
ture, they  survive  to  the  wife,  and  do  not  pass  to  his 

'As  to  the  vesting  of  wife's  chattels  in  the  husband  by  virtue  of  marriage, 
see  Bishop  on  Married  Women,  sees.  04,  52;  Clapp  r.  Stoughton,  10  Pic!;.  4G2; 
Sheriff  v.  BuckiiLr,  1  Litt.  120;  Owynn  ?'.  Hamilton,  29  Ala.  233;  Martin  v. 
PdUguH,  4  IJ.  M(in.  ")24;  Wasliburn  r.  Hale,  10  Pick.  429;  Carlcton  r.  Lovejoy, 
54  Mo.  445;  Junliii  v.  Jordan,  52  Mo.  ."VJU;  Hopper  r.  McWhorter,  IS  Ala.  iJO; 
\U:n  V.  Bell.  1  Kelly,  037;  Byrd  r.  Ward,  4  McCord,  228;  Cram  r.  Dudley,  28 
N.  H.  537;  Pope  r.  Tucker,  23  Ca.  484;  Hill  v.  Wynn,  4  W.  Va.  453;  Ewing 
r.  Hau.lley,  4  Litt.  340;  14  Am.  Dec.  140;  Miller  r.  Bingham,  1  Ircd.  Eq.  423; 
30  Am.  Dec.  58;  Daniel  r.  Daniel,  2  Rich.  E<j.  115;  44  Am.  Dec.  244;  Burlcigli 
r.  Coffin,  22  N.  H.  118;  53  Am.  Dec.  230.  The  possession  of  the  wife  can 
never  become  ailvcrse  to  the  huslwind,  tliough  ho  has  abamloned  her  and  lived 
in  adultery  with  another.     Bell  r.  Bell's  Adm'r,  37  Ala.  530;  7i)  Am.  Dec.  73. 

'Cunningham  r.  Gray,  20  Mo.  170;  Apple  ?•.  (Janong,  47  Miss.  189;  Tally 
r.  Thompso.'i,  20  -Mo.  277;  Barbeo  v.  Wimer,  27  Mo.  140;  Pawky  t'.  Vogel,  42 
Mo.  291. 


§  \-:i      rtuisoxAL  ruorKuiv  t;i'ikn:cT  to  execution.       312 

ailininistrator.*  But  in  some  of  the  stiites  it  has  hocii 
hold  that  the  hushamrs  civthtors  may  roach  the  wile's 
chosos  in  notii^n  hofoiv  ho  reduces  tluin  to  |ios8easion.* 
Tlie  viow,  liowoviT.  uliirh  is  hest  suataiiiod  l>y  reason 
and  hy  authority  is,  tliat  to  entitle  the  husband  to  tlio 
benotit  t»f  the  wife's  ehoses  in  action,  he  nuist  at  least 
make  st)n)e  attempt  to  ap|)ro[)riate  them  to  his  own 
use,  or.  l>y  nu  aus  ui'  suit,  to  i-oiivi'rt  tin  lu  into  things 
in  possession;  that,  in  the  absence  of  such  attempt, 
the  ehoses  continue  to  ho  the  juopei'ty  of  the  wife; 
that  no  person  but  the  husbantl  is  entitled  to  exercise 
his  right  of  deprivinijj  her  of  such  property;  that  a  writ 
against  the  husband  oannot  roach  the  jiropcrt}',  because 
it  is  not  his,  and  cannot  reach  the  right  of  reducing  the 
propert}'  into  possession,  because  that  is  a  ]K>rsonal 
privilege,  and  cannot  be  transferred.^  "The  common 
law  of  England  identifies  the  wife  so  entirely  with  the 
husband  as  scarcely  to  tolerate  their  separate  existence 

•  Bishop  on  Married  Women,  sec.  G5;  Chappelle  v.  Olney,  1  Saw.  401. 

»  Wheeler  i:  Bowen,  20  Pick.  5G.3;  Holbrook  v.  Waters,  19  Pick.  354;  State 
r.  Krebs,  0  Har.  &  J.  31 ;  Peacock  r.  Pembroke,  4  Md.  280;  Strong  i'.  Smith, 
1  Met.  470;  Alexander  r.  Crittenden,  4  Allen,  .^'54;  Doll  ?•.  Oeiger,  2  (Jratt.  98; 
Vance  r.  McLaughlin,  S  Gratt.  289;  Hockaday  v.  Salloe,  2G  Mo.  219;  Johnson 
V.  Fleetwood,  1  llarr.  (Del.)  442;  Babb  v.  Elliott,  4  Harr.  (Ud.)  4GC;  Bryan  v. 
Rooks.  2'}  ( ;a.  022;  71  Am.  Dec.  191. 

*  Marston  r.  Carter,  12  N.  H.  159;  Poor  v.  Hazlcton,  15  N.  H.  f^M;  Wheeler 
V.  Moore,  13 N.  II.  478;  Smithurst?-.  Thurston,  Brightly,  127;  SkinnerV  Appeal, 
5  Pa.  St.  202;  Denison  r.  Nigh.  2  Watts,  90;  Robinson  r.  Woclpjier,  1  Whart. 
179;  29  Am.  Dec.  44;  Ryan  v.  Bull,  3  Strob.  Eq.  80;  Durr  v.  Bowyer,  2  Mc- 
Cord  Ch.  374;  Pcrryckar  v.  Jacobs,  2  Hdl  Ch.  509;  Short  v.  Moore,  10  Vt. 
446;  Probate  Court  r.  Niles,  32  Vt.  775;  Arrington  v.  Screws,  9  Ired.  42;  49 
Am.  Dec.  408;  Ootlbold  v.  Bass,  12  Rich.  202;  Pressly  ?•.  McDonald,  1  Rich. 
27;  Ikuiiettr.  Dillingham,  2  Dana,  4.37;  Kilby  r.  Haggin,  3  J.  J.  Marsh.  208; 
Sayre  r.  Flournoy,  3  Kelly.  .">4I;  Flury  r.  Becker,  2  Pa.  St.  470;  45  Am.  Dec. 
CIO;  ScrutUnj  r.  Pattillo,  L.  R.  19  Ej.  309;  12  Moak,  803;  Proctor  r.  Fcrebec, 
1  Ired.  Ecj.  143;  30  Am.  Dec.  34;  Kaufman  v.  Crawford,  9  Watts  &  8.  131; 
42  Am.  Dec.  323;  Wcdgery  r.  Tcpper,  L.  R.  5  Ch.  D.  510;  22  Moak,  201; 
Slocum  r.  Brecdlove,  8  La.  143;  28  Am.  Dec.  135;  Miller  r.  Mdler,  1  J.  J. 
Marah.  109;  19  Am.  Dec.  59;  Scott  v.  Hicka,  2  Sneed,  192;  C2  Am.  Dec.  458. 


313  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  127 

while  they  Uve  together.  She  cannot  acquire  personal 
propert}^  by  a  direct  conveyance  to  herself.  Her  in- 
terest is,  by  act  of  law,  almost  in  every  instance  trans- 
ferred to  her  husband.  But  this  rule  does  not  apply 
to  personal  estate  to  which  a  female  is  entitled  before 
marriage,  and  which  has  not  been  reduced  to  possession. 
This  remains  her  property,  and  does  not  vest  in  the 
hu^^band  bv  the  marriao^e.  The  marital  rii;-ht  does  not 
extend  to  the  property  while  a  chose  in  action,  but 
enables  the  husband  to  reduce  it  to  possession,  and 
thereby  acquire  it.  The  property  becomes  his,  not 
upon  the  marriage,  but  upon  the  fact  of  his  obtaining 
possession.  The  property  does  not  become  his,  nor  is 
it  subject  to  the  liabilities  which  attach  to  that  which 
is  his,  until  it  shall  be  reduced  to  possession.  Till  then 
his  creditors  have  no  claim  to  it."^ 

Mere  manual  possession  alone  is  not  sufficient.  It 
must  be  a  reduction  to  possession  with  intent  to  assert 
the  husband's  martial  right.  Hence,  where  he  intends 
the  property  to  remain  his  wife's,  his  intent  is  not  frus- 
trated by  his  becoming  its  custodian,"  nor  by  holding 
it  as  trustee,^  or  as  executor.*  There  nmst  be  a  union 
of  act  and  intent.  Therefore  the  intent  without  the 
act  is  as  ineffective  as  the  act  without  the  intent.^  A 
wife's  chose  in  action  is  reduced  to  the  possession  of 
her  husband,  and  its  proceeds  become  his  property,  when 
he  receives  payment  thereof  with  intent  to  appropriate 

»  Gallcgo  V.  Gallcgo,  2  Brock.  280;  Harria  v.  Taylor,  3  Snceil,  53G;  07  Am. 
Dec.  370. 

'  Hind's  EnUte,  5  Whart.  l.TS;  :U  Am.  Die.  .^>4.">;  Holmes  r.  Holmes,  2S  Vt. 
67.');  MclJowtU  V.  I'ottcT,  8  Pa.  St.  I'JJ;  IJarlK-r  r.  SLulc,  30  Vt.  l'.)l;  73  Am. 

Dec.  2yy. 

»  JackHon  r.  McAlilcy,  1  Spcar.i  Eii-  303;  40  Am.  Dec.  020;  licsor  v.  lUsor, 
9In(l.  347;  Sute  r.  Koigart.  1  (lill,  1;  3'J  Aui.  Dec.  028. 

♦  Walker  I'.  Walker,  2.')  Mo.  .307;  Pago  v.  SoBsionB,  4  How.  122. 
»  Brown  V.  Bokee,  53  M<1.  l.w. 


S  ir      PERsoNAi-  riiorr.uTY  srivTECT  TO  r.xF.rrTTox.       ni4 

the  jmxHHHls  to  his  own  iisf.'  <>r  ac<*t^j>ts  in  its  stoad  a 
Kuul  |>aval»K>  to  liinisi'ltV"  or  oxocuti-s  a  traiisliT  tlurt'of, 
or  roc»>vcrs  jiuli^mont  thorooii,  in  liis  own  nanu'."*  With 
rospix^t  to  tl»o  ollbct  of  ft  transfiM'  for  \ahu\  inailo  hy  a 
hushand  «'f  liis  wife's  cliosi*  in  action  lu.tt  <'tlu'rwiso 
reilucoil  to  liis  possession,  the  autlioritios  disagree, 
sonio  assort in>4  tliat  it  opiTates  to  vest  in  tlie  assignee 
an  inilcfoasihlo  title,*  and  others  contending  that  the 
assignee  ohtains  nothing  Ixyond  what  the  assignor 
held,  viz.,  the  right  to  reduce  tlio  chose  into  possession, 
and  that  if  such  right  is  n(»t  exercised  during  the 
husUmd's  life,  the  chose  survives  to  the  wife.^  The 
recovery  of  judgment  on  a  wife's  chose  in  action,  where 
the  hu.->l»and  instead  of  suing  alone  merely  joins  with 
her  as  a  party  plaintiff,  does  not  vest  it  in  him."  Con- 
cerning })ost-nuptial  choses  in  action,  there  exists 
the  same  divergence  of  judicial  opinion  as  in  other 
cases.  So  far  as  the  earnings  of  the  wife  is  concerned, 
thev  doubtless  belong  to  the  husband,  unless  he  has 
done  sonjething  to  estop  himself  from  claiming  them.^ 
Human  beings,  less  heartless  and  more  discriminating 
than  the  common  law,  may,  however,  recognize  the  ser- 
vices and  kind  offices  of  a  married  woman,  and  express 

*  Thonms  r.  Chicago,  65  111.  10,3;  Lowery  v.  Craig,  30  Miss.  19;  Plummcr  v. 
Jarman,  44  Md.  G;J2. 

»  Stewart's  App  al,  3  Watts  &.  S.  476. 

»  Alexander  r.  Crittemlcn,  4  Allen,  342;  Probate  Court  v.  Nilcs,  32  Vt.  775. 

♦  Sitcr's  Caae,  4  Ilawle,  4GS;  Tritt  r.  ColwcU.  31  Pa.  St.  228;  Needles  v. 
Needles,  7  Ohio  St.  432;  70  Am.  Dec.  85;  Tuttlo  r.  Fowler,  22  Conn.  58; 
Ware  r.  Ware,  28  (Jnitt.  r)70;  Manion'a  Adm'r  v.  Titsworth,  18  B.  Mod.  582; 
8mitb  r.  Atwoo<l,  14  Ga.  402. 

*SUt«  r.  I^)l>ert.son.  5  Harr.  (Del.)  201;  Gcorgo  r.  Goldshy,  23  Ala.  320; 
Bryan  r.  Spruill,  4  .Jones  E<i.  27;  O'Connor  r.  Harris,  81  N.  C.  279. 

«  McDowd  r.  Charles,  0  .Johns.  Ch.  132;  Piersnn  r.  Smith,  9  Ohio  St.  554; 
75  Am.  Dec.  48G;  Perry  r.  Wheelock,  49  Vt.  C3;  Piko  v.  Collins,  33  Me.  38. 

"  Prcscott  r.  Brown.  29  .Me.  305;  39  Am.  Dec.  023;  Norcross  v.  Ilodgcrs, 
30  Vt.  5S8;  73  Am.  Dec.  323. 


315  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  127 

such  recognition  in  the  form  of  a  chose  in  action  pa3'"able 
to  her,  or  such  chose  may  be  taken  in  her  name  in  pay- 
ment of  portions  of  her  separate  estate  sold  by  her. 
Doubtless  there  are  courts  which  rcfjard  such  chose,  in 
either  case,  as  the  absolute  property  of  the  husband, 
and  consequently  as  subject  to  execution  against  him.^ 
On  the  other  liand,  choses  in  action  taken  in  the  name 
of  a  wife,  of  which  she  is  the  meritorious  cause,  and 
possibly  those  taken  in  her  name  with  the  assent  of 
her  husband,  of  which  t>he  is  not  the  meritorious  cause, 
have  been  treated  as  of  the  same  effect  as  her  ante- 
nuj)tial  choses.^  Where  creditors  of  the  husband  find 
it  necessary  to  ask  the  aid  of  equity  to  enable  them  to 
reach  choses  in  action,  and  appropriate  them  to  the 
satisfaction  of  the  husband's  debts,  it  is  very  clear  that 
the  relief  sought  will  not  be  granted  unless  adequate 
provision  first  be  made  for  the  support  of  the  wife  and 
her  children.''  It  will  be  seen  that  the  exemption  of 
the  wife's  cho.ses  in  action  from  execution  or  attach- 
ment against  her  Imsbaiid  will  onl}'  be  maintained 
when  the  circumstances  are  such  that  tlu^y  must  still 
be  regarded  as  her  property.  The  reason  why  a 
sheriff  may,  ordinarily,  under  a  writ  against  a  married 
man,  seize  the  personal  property  which  belonged  to 
the  wife  at  her  marriage,  is  not  because  the  wife's 

'  StevciiH  ?-.  iJeals,  lOCusli.  291;  57  Am.  Dec.  108;  ConunouweaUh  r.  Man- 
ley,  12  Pick.  173;  Ki-fhsr.  OTJrady,  23  Ala.  72G;  5S  Am.  Doc.  312;  IVacock  r. 
Pcml)ro!tc,  4  .\M.  28t). 

■•I  DickiiiHon  v.  Davis,  43  N.  H.  U17;  SO  Am.  Dec.  202;  Uarl)cr  r.  Sladc,  30 
Vt.  I'Jl;  73  A:n.  Doc.  290;  IJi.oz.;r  v.  A.ldi.sou,  2  Rich.  Eq.  273;  4G  Am,  Doc. 
43,  an<l  note;  Reel  r.  Blaisdcll,  IG  N.  H.  194;  41  Am.  Dec.  722. 

»  Drowning  p.  Ilcadley,  2  Rol).  (Va.)  .^40;  40  Am.  Dec.  7'>:);  Wiles  v.  Wilos,  3 
Md.  1  ;.'■)()  Am.  Dec.  733;  Daniel  >\  Daniel,  2  Rich.  Efj.  115;  44  Am.  Dec.  244; 
WilkH  V.  Fitzpatrick,  1  Humph.  r>4;  34  Am.  Dec.  GI8;  Duvall  v.  Farmers* 
B.ink,  4  (;ill  &  J  282;  23  Am.  Dec.  558;  Oswal.l  v.  Hoover,  43  Md.  .3(58;  Van 
Diiz'T  r.  Van  Duzer.  (5  Paig<%  .3<W>;  31  Am.  Doc.  257;  Napier  r.  H.twanl,  3 
Kelly,  192;  Hay.^  r.  Bhinks,  7  B.  Mon.  347;  Bowling  r.  Bowling,  G  H.  Men.  31. 


§  l'.»S         PKUSONAL   rUDrKKTY    SUWKCT  TO    KXKi  TllOX.  :nt*) 

property  is  lial»lo  to  \)v  takrn  in  satisfaction  ot'  jiuli:^- 
iiKMits  against  hcv  lju>baiul,  Imt  bcH-aust*  the  property 
seizeil  upon  l>elonjj[s,  in  contemplation  of  law,  to  the 
defenilant  in  exi'cntion.  J>ut  projurty  Nvliieli,  notwith- 
stiinclinj^  the  niarriaL;'e,  is  reeognizeil  l>y  law  a-;  consti- 
tuting the  separate  estiite  of  the  wile  is  no  more  liable 
to  be  tiiken  on  an  execution  against  her  husliand  than 
it  is  to  be  t;ikcn  niuKr  a  writ  against  some  other 
ixu^son.  Whatrver  interest  in  tlie  iir<»pi  rty  the  law 
concedes  to  tlu'  wil'r,  it  will  protect  irom  her  hus- 
iMind's  creditors;'  and  in  some  of  the  states,  statutes 
liave  been  enacted  which,  without  chan<ring  the  wife's 
legal  title  to  perst>nal  estate  owned  by  her  before  mar- 
riage or  afterwards  accpiind,  have  exempted  such 
property  from  execution  against  the  husband.^  In 
other  stati'S,  the  wife  is  required  to  file  for  record  an 
inventory  of  her  separate  ]>ersonal  estate.  If  she  omits 
to  do  this,  it  may  be  taken  in  execution  to  satisfy  her 
husband's  debts.* 

§  123.  Property  of  Wife  under  Execution  against 
Herself.  —  Married  women  are  not  usually  regarded  as 
exempt  from  tlie  jurisdiction  of  the  courts.  Judg- 
ments against  them,  until  vacated  in  some  pi'oper  pro- 
ceedings, are  generally  l/mding  to  all  intents  and 
purposes,  and  are  capable  of  being  enforced  in  the  same 

>  Unger  r.  Price.  9  Mil.  552;  Logan  r.  McGill,  8  M.l.  401;  Bariianl  r.  Mix, 
35  Conn.  '2-23;  Kiiapp  r.  Smith,  '27  N.  Y.  277;  Buckley  v.  Well.s,  33  N.  Y.  518; 
Gage  r.  I>auchy,  .'U  \.  Y.  21)3;  .Tolinson  r.  Chapman,  35  Conn.  550;  Jones  v. 
JEtna.  Ina.  Co.,  14  Conn.  5<)1;  Stl.len  v.  Merchauta'  Bank,  09  Pa.  St.  424;  Van 
Ettcn  r.  Currier.  3  Keyes.  .329;  Klucnder  ?•.  Lynch,  4  Keycs,  3G1;  Hale  r.  Coo, 
49  Mo.  181;  Saunders  r.  Oarrott,  33  Ala.  454. 

*  Harvey  r.  Wickham,  23  Mo.  112;  White  r.  Dorria,  35  Mo.  181;  Pawley  v. 
Vogel.  42  Mo.  291;   Hale  r.  Coc,  49  Mo.  181;  Furrow  r.  Chapin,  13  Kan.  107. 

*  Williami  r.  iJrown,  28  low.i,  247;  Prennall  r.  Iltrbert,  34  Iowa,  539; 
Stoart  V.  BUbop,  33  Iowa,  584. 


317  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §129 

manner  as  judgments  similar  in  other  respects.  Hence, 
when  a  personal  judgment  for  money  is  entered  against 
a  married  woman,  either  alone  or  in  conjunction  with 
other  defendants,  it  is  commonly  conceded  that  execu- 
tion may  be  issued,  under  which  the  sheriff  may  seize 
and  sell  her  separate  propert\'.^  In  at  least  one  case 
it  has  been  held  that  when  a  woman  marries  her  debt 
becomes  the  debt  of  her  husband;  that  he  alone  is  re- 
sponsible for  its  payment;  and  that  in  no  case,  during 
the  coverture,  can  execution  issue  against  her  separate 
estate,  whether  for  a  debt  contracted  before  or  after  her 
marriage.^ 

PROPERTY  IX  THE  CUSTODY  OF  THE  LAW. 

,$  129.  Property  in  the  Hands  of  Receivers  and 
Assignees.  — -  It  is  very  clear  that  all  property  in  cus- 
tody of  the  law  is  not  subject  to  any  seizure  or  inter- 
ference by  officers  actinij  under  writs  of  execution;* 
but  some  difficulty  may  be  experienced  in  determining 
when  property  is  so  within  the  custody  of  the  law  as 
to  be  shielded  by  this  rule.  When  a  court  of  equity 
has  acted  by  taking  property  into  its  possession  by  the 
appointment  of  a  receiver,  such  property,  whether  real 
or  personal,  is  clearly  m  custodia  Icgis.  The  whole  pur- 
po.se  of  the  suit  might  be  defeated  if  an  officer  could 
wrest  the  property  from  the  agent  of  the  court,  and 
sell  it  by  virtue  of  a  writ  against  one  of  the  contending 
parties.      Such  property  is  not  subject  to  execution.* 

'  Smith  r.  Taylor,  1 1  f!a.  20;  Schafroth  v.  Anihri,  4t;  Mo.  114;  Rouutroo  v. 
Thoman,  .32  Tex.  2%;  MuHgravu  r.  MuHgrave,  54  111.  18G;  Vau  Metro  t-.  Wolf, 
27  Iowa,  .HI;  .Merrill  v.  St.  Louis,  8.3  Mo.  244. 

'  HaygrKj<l  r.  HarriH,  10  Ala,  291. 

»  Hacklcy'H  Ex'r  i\  Swigert,  5  B.  Mon.  80;  41  Am.  Doc.  2.'5G. 

*(iouveru<;ur  t'.  Warner,  2  .Sainl.  024;  Wiswall  r.  Sampson,  14  How.  52; 
Klmrtin  r.  Davin,  21  Iowa,  5.'i3;  Field  r.  Jones,  11  Ma.  413;  Nel.son  r.  Cou- 
nor,  6  Koh.  (La).  3.39;  County  of  Yuba  v.  Adams  &  Co.,  7  Cal.  35;  Glonn  v.  Gill, 


§  1-0        PERSONAL  PROPERTY   SUliTErr  TO   KXECUTION.  318 

No  officer  lias  any  right  to  Irvy  on  it.  witliout,  iicnnis- 
sioii  of  tlu>  iMiirt.  Proceed  in;j;  without  sinli  jkm  mission, 
he  may  he  hrouL^lit  hi^iore  the  court,  j»unisln(l  Inr  con- 
teiiipt,  and  ohlii^ed  (o  rrlincjuish  his  Icxy."  l*roj)erty 
has  lieen  held  to  he  in  custody  of  law  where  a  receiver 
liad  heeii  appointed  hut  hail  declined  to  act."  The  ef- 
fect of  the  appointment  oi'  a  receivci-,  in  a  suit  hrouglit 
bv  one  partner  a«jfainst  another  for  the  dissolution  of 
the  partnership  and  the  settlement  of  its  ail'airs,  has 
]>een  considered  in  a  series  of  cases  in  California  aris- 
in;jf  out  of  the  sonuwJiat  notori(»us  lailuic  of  Adams 
and  Comi>any.  Tlie  eonelusion  tlicre  reached  was,  that 
until  the  dissolution  of  the  i)artneishii)  is  decreed  and 
the  jiW  rata  distiihution  of  its  assets  ordered  among 
the  creditors,  they  are,  notwithstanding  the  appoint- 
ment of  a  receiver,  at  liherty  to  pursue  their  remedies 
at  law,  and  entitled  to  retain  any  liens  resulting  from 
their  diligence  in  such  pursuit."''  The  reasons  given  in 
support  of  these  decisions  were,  that  the  suit  was  one 
to  which  the  creditors  were  not  parties,  and  over  which 
they  had  no  control;  that  they  might  settle  or  adjust 
the  case  between  themselves,  or  the  plaintiff  might  dis- 
miss it  at  any  time;  that  until  the  dissolution  was  de- 
creed, it  could  not  be  known  that  the  firm  business  would 
be  terminated  and  its  affairs  settled  by  the  court;  and 
that  it  would  be  unwise  to  deny  the  creditors  the  right 
to  pursue  the  partnership  because  one  of  its  members 

2  M.l.  1;  Taylor  r.  Gillian,  23  Tex,  508;  Robinson  r.  A.  &  O.  H.  K.  Co.,  C6 
Pa.  St.  ICO;  Bcntlcy  r.  Shrieve,  4  M<1.  Ch.  41 '2;  Farmers'  Bank  v.  BeaHton, 
7  Gill  &  J.  4'Jl;  'J8  Am.  l>ec.  'JOb;  I^ugdou  r.  Lockett,  0  Al.i.  7'-'7;  41  Am. 
Dec.  78;  Jackson  r.  Laliec,  114  111.  '287. 

"  Ruasoll  r.  Eaat  Anglican  K.  W.  Co.,  3  Macn.  &  G.  104;  Coo  t-.  C.  I'.  &  I. 
R.  R.  Co.,  lOOhioSt.  403;  75  Am.  Dec.  518;  High  on  Receivers,  sec.  103. 

*  Skinner  r.  Max  wall,  08  N.  C.  400. 

*  Adam*  r.  Hackett,  7('al.  187;  Adam.i  v.  \Voodn,  8  Cal.  l.VJ;  08  Am.   Deo. 
313;  Adama  r.  Woods,  U  Cal.  I'J. 


319  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  130 

had  obtained  the  appointment  of  a  receiver  in  a  suit 
which  he  might  dismiss  or  delay  at  pleasure.  This 
reasoning  is  not  without  force;  but  we  think  it  more 
appropriate  when  presented  to  the  court  in  opposition 
to  tlie  appointment  of  the  receiver,  or  in  support  of  a 
motion  for  leave  to  proceed,  notwithstanding  such  ap- 
pointment;^ for  generall}'^  courts  of  equity  will  not  per- 
mit a  party  who  has  defied  their  authority,  by  seizino- 
under  execution  property  in  their  possession,  to  excuse 
himself  on  the  ground  that  the  order  appointing  the 
receiver  was  irregularly  or  improvidently  made.^  An 
assignee,  appointed  in  proceedings  at  law  for  the  bene- 
fit of  insolvent  debtors,  seems  to  stand  in  the  same 
position  as  a  receiver.  He  is  an  officer  of  the  court, 
and  moneys  and  effects  in  his  hands  are  in  the  custody 
of  the  law.  They  cannot  be  reached  by  garnishment,^ 
unless  a  dividend  has  been  declared,  and  the  assi<^nee 
has  been  directed  to  pay  it  over  to  the  respective 
creditors.*  One  to  whom  a  debtor  has  made  a  volun- 
tary assignment  of  his  assets  for  the  benefit  of  credi- 
tors is  liable  to  be  garnished.  If  he  has  in  his  hands 
assets  more  than  sufficient  to  discharge  the  claims  of 
the  creditors  assenting  to  the  assignment,  a  dissenting 
creditor  may  reach  the  surplus  by  garnishment.^ 

g  130.  Moneys  Collected  by  Sheriffs,  Constables, 
Clerks,  and  Justices.  —  The  authorities  arc  very  nearly 
unanimous  'm  sustaining  the  i)roposition  that  when  a 

*  Sco  Jack-son  v.  Lahne,  lit  111.  287;  Waring  t>.  Robinson,  Hoff.  Cli.  52 1, 
»  RiiiMell  r.  K.%at  Anglican  R.  Co.,  3  Macn.  k  <  I.  101. 

•  Colliy  V.  CoatoH,  6  CuhIi.  5.'>8. 

♦  Thayer  r.  Tyler,  5  Allen,  '.»t;  .Jr.iics  r.  CJorliani,  2  M.iss.  .ITri;  I>ecostcr  «. 
Livormore,  4  Miuis.  101. 

'  L«!e.J«  r.  Sayward,  6  N.  H.  83;  Viall  v.  BUhh,  9  Pick.  13;  War.l  v.  Lam- 
•on,  6  Pick.  .r»8;  Brewer  r.  Pitkin,  11  Pick.  2'.»8;  CniKl.in.l  v.  Wtl.l,  8  Me. 
411;  .Jew.-tt  r.  li.irn.ir.1,  0  .Me.  381;  Todd  v.  iJucknaui,  11  Me.  11. 


§  130       ri^lRSONAL  PROPERTY   SURJECT  TO  EXECUTION.         320 

shoritV  or  i-oiistaMr  has  colltH-ttd  mom  y  on  ixrcution, 
it  onii  nritliiT  l>o  hvird  upon  nor  L^'aruishocl  hy  tho 
^ylmo  or  an«)tlH  r  otliccr,  imdor  a  writ  ai^^ainst  tlio  judiJJ- 
imnt  oroiliti>r.'  X'arious  iva.sons  have  bciMi  given  in 
support  of  this  Y\\\v.  In  sonic  of  tho  cases,  the  judges 
were  satisfied  to  rist  (hrir  iud;j:imiit  on  tho  general 
statciuont  that  sucli  moiun's  wore  in  custody  of  law. 
In  other  cases,  it  was  urged  that  money  collected  on 
execution  does  not  tluMvhy  become  the  propc^rty  of  tho 
plaintiti'  in  the  writ;  that  in  theory  of  law,  it  is  to  ho 
brought  into  court,  and  by  tlie  order  of  the  court  paid 

'Marvin  r.  Il.iwloy,  9  Mo.  37S;  l.?  Am.  Doo.  .>J7;  Keating  v.  Si)iuk,  3 
Ohio  St.  \'2i;  02  Am.  Ike.  'JH;  Jones  v.  Jones,  1  Rhin.l,  44.">;  18  Am.  Dec. 
a-JT;  Turner  r.  Fen.lall.  1  CVaueh.  117;  Wood  r.  Wood,  it  A.l.  &  E.,  N.  S., 
397;  3  (ialo  &  D.  5.T2;  7  Jnr.  3'J5;  12  L.  J.  tj.  B.  141;  SUto  r.  Wilson, 
b6  Mo.  49*2;  Ex  parte  Fearie  and  Lewis,  13  Mo.  4G7;  53  An>.  Dee.  1j5; 
Winton  r.  Stato,  4  Iml.  321;  Thompson  r.  Rrown,  17  Pick.  402;  Dubois  v. 
DulxMS.  6  Cow.  404;  Sutc  r.  lx;a,  8  IreJ.  9^1;  Ilanling  v.  Steven.:on,  G  liar,  tc 
J.  2t>4;  Staples  r.  Suples,  4  (Jreenl.  5.32;  Knight  r.  CridJle,  9  East,  4S;  Mua- 
cott  r.  Woo«lworth,  14  How.  Pr.  477;  Rikcr  r.  Kenworthy,  41  N.  Y.  215; 
Re«ldick  r.  Smith,  3  Scam.  451 ;  Padfield  r.  Brine,  3  B.-od.  &  B.  294;  Collin- 
bridge  r.  Paxton,  11  Com.  B.  G83;  State  r.  Taylor,  50  Mo.  492;  21  Am.  Rep. 
5G1;  Dawson  r.  Holeomb,  1  Ilam.  275;  13  Am.  Dec.  018;  Willis  v.  Pitkin,  1 
Root,  47;  Reno  r.  Wilson,  Hemp.  91;  Prentiss  r.  Bliss,  4  Vt.  513;  24  Am, 
Dec.  031;  First  r.  Miller,  4  Bibh,  311;  Cray  r.  Maxwell,  50  Ga.  108;  Campbell 
r.  Ha-shrook,  24  111.  243;  Stevenson  r.  i)ougla.s,  liert.  281.  In  tho  foregoing 
caites,  attempts  were  made  to  Uti/  upon  money  in  the  ofBccr's  hands.  Tho 
following  cases  show  that  the  same  principles  apply  to  attenij)ted  garnish- 
ments: Clymer  r.  Willis,  3  Cal.  30:i;  58  Am.  Dee.  414;  Burrcll  v.  I.«tson, 
1  Strob.  239;  Hill  r.  Lacrosse  &,  M.  R.  R.  Co.,  14  Wis.  293;  80  Am.  Dec. 
783;  Lightner  r.  Steinagel.  33  111.  510;  85  Am.  Dec.  292;  Wihler  v.  Bailey, 
3  Man.  289;  Pollard  r.  Rf»88,  5  Maaa.  19;  Robinson  r.  Ilowanl,  7  Cush.  257; 
Morria  r.  Pcnniman,  14  Gray,  220;  74  Am.  Dec.  075;  Farmers'  liank  r.  Beaa- 
toa,  7  Gdl  &  J.  421;  28  Am.  Dec.  220;  Jones  r.  Jones,  1  Bland,  443;  18  Am, 
Dec.  337;  Overton  ?-.  Hill,  1  Murjili.  47;  Blair  v.  Cantey,  2  Spears,  34;  42  Am. 
l>cc  300;  Zureh.  r  r.  Magee,  2  Ala.  253;  Dranc  f.  McfJavock,  7  Humph.  132; 
Marvin  r.  Hawky,  9  Mo.  382;  43  Am.  Dec.  547.  But  Conant  v.  Bickell,  1  D. 
Chip.  50;  Hurlburt  r.  Hicks,  17  Vt.  193;  44  Am.  Dec.  329;  Lovejoy  r.  Lee,  35 
Vt.  4.30;  Crane  r.  Freese,  1  Har.  (N.  J.)  .3U5;  W<K>dljri.lgo  r.  Morse,  5  N.  II. 
519;  D..lby  r.  .Mullins,  3  Humpli.  437;  39  Am.  Dee.  180;  and  Hill  r.  Beach,  1 
liea^l.  31,  — <lifferiug  from  the  majority  of  the  authorities,  hold  tliat  incmey  in 
the  HhvriiTa  hauda  may  l>e  garniahed  under  writ  agaiuat  tho  judgment  creditor. 


321  PERSONAL  PROPERTY   SUBJECT  TO  EXECCTION.        §  13a 

over  to  the  person  entitled  thereto;  that  the  officer, 
upon  the  receipt  of  such  money,  does  not  thereby 
become  the  debtor  of  the  phiintiff;  and  finally,  that  it 
is  not  until  the  money  is  paid  over  to  the  plaintiff  that 
it  becomes  his  propert}',  and  subject  to  execution 
afjainst  him.  It  has  also  been  sui>fjested,  as  a  matter 
of  public  policy,  that  the  officers  of  the  law,  in  the  dis- 
charge of  their  duties,  should  be  protected  from  the 
hindrance  and  embarrassment  consequent  from  holding 
money  and  other  propert}'  in  their  official  custody,, 
liable  to  levy  and  seizure  in  other  suits.  Money  in 
the  hand.s  of  a  sheriff  or  constable,  belonging  to  the 
defendant,  being  the  surplus  or  residue  remaining  in 
possession  of  the  officer  after  he  has  satisfied  the  writ, 
has  sometimes  been  regarded  as  in  custody  of  the  law, 
and  therefore  as  not  subject  to  execution.^  But  in  a 
considerable  preponderance  of  the  cases  a  ditlerent 
view  has  been  taken.  The  execution  having  been 
fully  satisfied,  the  officer  ceases  to  hold  the  money  by 
virtue  of  the  writ.  As  to  the  ascertained  surplus,  he 
is  said  to  be  liable  to  the  defendant,  as  for  money  had 
and  received.  Such  surplus  can,  therefore,  while  in 
the  officer's  iiands,  be  reached  by  the  defendant's 
creditors.-     In  Connecticut,  where  the  writ,  instead  of 

>  FieMhou«e  »•.  Croft.  4  East,  50(3;  Fretz  v.  Heller,  2  Watts  &  S.  397;  Har- 
rison r.  Payntcr,  G  Mees.  &  W.  3S7;  Willowd  v.  Ball,  2  Bos.  &  P.  N.  R.  370; 
Cronuen  r.  McAllister,  2  I'a.  L.  J.  ]W;  Bentley  v.  Clugg,  2  Pa.  L.  J.  02;  Orien- 
Ul  Riiik  r.  (Irarit,  1  Wyatt  &.  \V.  10. 

»  Pi'-rco  r.  Carlton,  12  111.  3jS;  M  Am.  Dec.  405;  Lightner  r.  Stcinagcl,  33 
111.  510;  85  Am.  I)ec.  21)2;  Orr  v.  McBri.le,  2  Car.  Law  Rep.  2.'>7;  Davi.lsoii 
r.  Claylan.l.  1  Har.  &  J.  510;  .lae.patt'rt  AJiiiV  r.  Palmer,  2  Harr.  (Del.)  IM; 
Kingr.  ,M(«.r<-,  0  Ala.  100;  41  Am.  Do:  44;  Hearii  ?•.  Crutclur.  4  Verg.  401; 
I>ick«on  f.  P.ilmer.  2  Rich.  Eq.  407;  Tucker  r.  Atkinson,  1  Humi)h.  .'KK);  34 
Am.  I)cc.  05O;  Watj»on  v.  To.i.l.  5  Miwh.  271:  Hill  v.  lieach,  1  Beaul.  31;  Lovo- 
joy  r.  Lee.  35  Vt.  430;  Wliceler  v.  Smith,  11  Biirb.  3-t5;  Hamilton  v.  War.l,  4 
Tex.  350;  Walton  r.  Compton,  28  Tex.  509;  Lynch  v.  Ilanahan,  9  Rich.  180; 
Payne  r.  BiUingham,  10  Iowa,  300. 
Vol.  l.  —  n 


(t  130        ?ER.^ONAL   PROrERTY   SUBJEtT  TO  KXEOUTION.  3'>» 

cominamling  i\\o  oIVuht  t<>  liav»>  (he  in<»iu\v  in  cDurt, 
dirootcd  him  to  cause  tlir  nhnu>y  to  In-  1.  vinl,  "uikI 
paid  aiul  siitisfiod  to  plaintiHV'  tlio  court  ImM  that  tho 
otlircr  was  thcrchy  niacK'  tlic  uutc  a^cnt  of  the  phiin- 
tilf.  and  as  such,  that  he  couM  he  L^arnislud  I'or  moneys 
colUvti-d  for  plainliir  uihK  r  the  writ.'  Money  paid 
inti)  ci»urt  in  ^atislaction  ol"  a  jud^i^ment,  wlicther  paid 
t«.)  the  clerk  of  tlie  court,"'  or  to  a  judi;(  .  or  justice  of 
the  jK^ice,'  is  in  cualail'a  Icfjl)^,  and  exempt  ahiivo  from 
lew  or  ^^arnishmmt.  Moik  y  paid  to  the  clerk  of  a 
court  in  a  partition  suit  was  held  to  he  JialjJe  to  attach- 
ment, after  the  court  had  orden-d  it  t<>  !»»>  [laid  over  to 
the  pai-ties  entitled  tlureto.'*  >rf)ney  paid  to  a  .sheriff, 
to  effect  tho  redemption  ot'  property  sold  uii<ltr  execu- 
tion, is  protected  from  seizure,  bcini^  in  custody  of  the 
law  until  it  is  accepted  hy  the  holder  of  the  certificate 
of  purclia-^e."  One  of  the  reasons  for  denyinj,^  the 
right  t«)  attach  property  in  custody  of  tho  law  is  that 
otherwise  a  contlict  must  arise  between  different  oiH- 
cers  seeking  in  the  performance  of  their  duties  to  seize 
the  same  property.  This  reason  does  not  exist  when 
two  writs  are  in  the  hands  of  the  same  otlicer.  It  has, 
therefore,  sometimes  been  held  that  a  sheriff  having 
monc^-s  in  his  hands  due  a  judgment  creditor  might 

»  New  Haven  Saw-mill  Co.  »•.  Fowl<!r,  28  Couu.  103. 

•Ros.s  V.  CLirk,  1  iMll.  334;  Sihert  r.  Humphriu.s,  4  Ind.  481;  Daley  r. 
Canningliain,  3  La.  Ann.  ;">");  Farmers'  Bank  <■.  Boaston,  7  (Jill  &.  J.  4'21;  'J8 
Am.  lA-c  22G;  Overtiin  v.  iliU.  1  Murph.  47;  Aluton  r.  Clay,  Hayw.  (N.  C.) 
171;  Hunt  r.  Stcven.s,  3  I  red.  3G');  Drano  r.  McGavock,  7  Iliimjih.  132;  Mur- 
rell  r.  Johnw^n,  3  Hill  (S.  C),  12;  liowden  v.  Schatzell,  Bail.  Eq.  3G0;  23 
Am.  Dec.  170. 

•Conlyn  r.  B.jllman,  4  Watts  &  S.  342;  Hooks  r.  York,  4  Ind.  C3G.  It  is 
OthGrwi-su  in  Alal>auta.     Clark  »'.  Boggs,  0  Ala.  SfW;  41  Am.  ])iv.  83. 

*  (Icither  r.  Billew,  4  Jone«,  488. 

»Divi«  r.  Seymour,  IG  .Minn.  210;  Lightner  i-.  Stcinagcl,  .'53  HI.  513;  85 
Am.  Dec.  2»2. 


3-3    PEIISOXAL  TROPERTY  SUBJECT  TO  EXECUTION.     §§  130a,  131 

retain  such  moneys  under  a  writ  coming  to  his  hands 
airainst  such  creditor.^ 

§  130  a.   Property  Taken  from  a  Prisoner  upon  his 

Arrest,  by  a  sheriff,  pohceman,  or  other  oflScer  charged 
with  that  duty,  is  not,  while  in  the  hands  of  such 
officer,  subject  to  levy,  nor  can  it  be  reached  by  gar- 
nishment or  trustee  process.'  This  exemption  is  not 
strictly  on  the  ground  that  the  property  is  in  custody 
of  the  law,  for  the  charge  under  which  the  arrest  was 
made  may  not  relate  to  the  property  taken  from  the 
prisoner,  and  under  no  circumstances  could  it  affect  the 
title  thereto.  But  "we  should  fear  that  any  other 
construction  would  lead  to  a  gross  abuse  of  criminal 
process.  Such  process  might  be  used  to  search  the 
person,  or  otherwise,  under  cover  of  lawful  authority, 
to  get  possession  of  the  property  of  a  debtor,  in  order 
to  place  it  in  the  hands  of  the  officer,  and  thus  make  it 
attachable  by  trustee  process."  ^ 

v;  131.  Moneys  and  other  Chattels  in  the  Possession 
of  administrators,*  executors,^  or  guardians,"  in  their 
official  capacity,  are  almo.-st  universally  conceded  to  be 

'  Ex  parte  Fearle  and  Ixjwis,  13  Mo.  407;  53  Am.  Dec.  155;  Dolby  r.  RIul- 
lins.  3  Humph.  437;  3'J  Am.  Dec.  180. 

"  Rol>iij3on  I'.  Howard,  7  Cush.  257;  Morris  v.  Penniman,  14  Gray,  220;  74 
Am.  Dec.  075. 

»  7  Cuah.  250. 

♦  Curling  r.  Hyde,  10  Mo.  374;  Coll.y  r.  Coatcs,  0  Cush.  5.')8;  Hancock  v. 
Titus,  39  Misa.  224;  Selfridye's  Ai^jcal,  0  Watts  &  8.  55;  Thayer  v.  Thayer,  5 
Allen,  94;  Waitc  r.  O.sborn.  11  M.-.  Ih5;  Sugga  v.  Sapp,  20  CJa.  100;  Marvel  v. 
HonsUm,  2  Harr.  (I>el.)  349;  Thorn  v.  Woodrulf,  5  Pike,  55;  Welch  r.  Gurlcy, 
2  Hayw.  (N.  C.)  3.34;  }Iartlo  v.  Long,  5  Pa.  St.  491;  Stout  v.  La  Follette,  64 
lud.  305. 

^Barnes  v.  Treat,  7  Ma-w.  271;  Pifjuet  v.  Swan,  4  Maua.  443;  Young  v. 
Youn;;.  2  Hill  (S.  C).  425;  Btckwitli  v.  Baxter,  3  N.  H.  07. 

•Gaasatt  v.  Grout,  4  Met.  48<;;  Hanson  r.  Butler,  48  Mo.  81;  (iodbold  r. 
Bms,  12  Kich.  202;  Davia  r.  Drew,  0  N.  H.  399;  25  Am.  Dec.  407. 


§  mi        ri:RSONAL  TROPERTY  SURTECT  to  execution.  324 

in  rustiuly  of  l\\c  law,  uinl  tliorcfon'  an-  licit Iut  siiltjtct 
to  L'vy  uiulor  cxecutitm.  nor  t<>  any  jirocess  of  <2[arnisli- 
nunt.  •'Xo|)orsi)iul(M-ivin'_;"  his  authority  from  the  hiw, 
iuul  «.>l)Hj4i.il  to  (.'xocuto  it  jurordinnf  to  the  lulrs  of  law, 
can  bo  hoKlon  hy  process  of  this  kind."'  In  most  in- 
stances \vhoi\'  dcci.sions  lia\i'  l»rt'n  mado  holdini;-  that 
moneys  in  the  hands  of  administrators,  executors,  or 
s^uardians  could  not  l)e  reached  under  ])roeess  aj^aiuot 
the  creditor,  le<jatee,  or  ward  wjio  miijfht  become  en- 
titled  to  sucli  nu)nrys  on  a  linal  settlement  of  account-?, 
the  courts  have  professed  to  exempt  such  money,  both 
because  it  was  in  custodia  Icf/is,  and  Ijccause  it  could 
not  properly  be  .said  to  belonjj^  to  the  defendant  in 
execution  until  an  order  of  the  court  had  been  entered 
finallv  establishin'''  his  rij-ht  thereto,  and  directin<x 
that  it  should  be  paid  over  to  him  in  pursuance  of 
such  order.  We  tjive  the  followini>:  extracts  from  the 
opinions  of  the  suin-eme  courts  of  Connecticut  and 
Penns}  Ivania,  showinj^  the  reasons  influencing  those 
courts  when  attempts  were  made  to  garnish  legacies  in 
the  hands  of  executors  before  a  final  settlement  of 
the  estate:  "An  executor  cannot  be  considered  as  the 
debtor  of  a  legatee.  The  claim  is  against  the  testator 
or  his  estate;  and  the  executor  is  merely  the  rei)re- 
sentative  of  the  deceased.  There  cannot  be  a  debt  due 
from  the  executor  within  the  meanin<r  of  the  statute. 
Nor  can  a  per.son,  like  an  executor,  deriving  his  au- 
thority from  the  law,  and  bound  to  p(  rl'oiin  it  accord- 
ing to  the  rules  prescribed  by  law,  be  considered  as  a 
trustee,  agent,  attorney,  or  factor  within  the  statute; 
and  this  for  the  best  of  reasons.  In  the  conunon  ca.se 
f>f  agents,  trustees,  and  factors,  the  credit(jr  can  easily 
jilace  himself  in  the  shoes  of  tli(^  ai)Sconding  debtor, 

'  Brooks  V.  CooK  8  Ma^a.  24C. 


325  PERSONAL  PROPERTY    SUBJECT  TO  EXECUTION.       §  131 

and  prosecute  bis  claim  without  inconvenience  to  the 
garnishee.  But  such  would  not  be  the  case  with  an 
executor.  It  would  not  only  embarrass  and  delay  the 
settlement  of  estates,  but  would  often  draw  them  from 
courts  of  probate,  where  they  ought  to  be  settled, 
before  the  courts  of  common  law,  which  have  no  power 
to  settle  his  accounts.  Such  an  interference  might 
produce  much  inconvenience,  and  prevent  the  executor 
from  executing  his  office  as  the  law  directs."^  "An 
executor  or  administrator  is,  to  a  certain  extent,  an 
officer  of  the  law,  clothed  with  a  trust  to  be  performed 
under  prescribed  regulations.  It  would  tend  to  dis- 
tract and  embarrass  these  officers  if — in  addition  to 
the  ordinary  duties  which  the  law  imposes,  of  them- 
selves often  multiplied,  arduous,  and  responsible  — 
they  were  drawn  into  conflicts  created  by  interposition 
of  creditors  of  legatees,  and  compelled  to  withhold  pay- 
ment of  legacies  without  suit;  to  suspend  indefinitely 
the  settlement  of  estates;  to  attend,  perhaps,  to 
numerous  rival  attacliments;  to  answer  interrogatories 
on  oath,  and  to  ho  put  to  trouble  and  expense  for  the 
benefit  of  third  persons  no  way  connected  with  the 
estate  nor  within  the  duties  of  their  trust."" 

When  tlie  share  of  a  creditor,  heir,  legatee,  ward, 
or  other  person  entitled  to  moneys  in  the  hands  of  an 
administrator,  executor,  or  guardian  has  been  settled 
by  the  court  and  ordered  to  be  paid,  it  is  no  longer 
regarded  as  in  custody  of  the  law.  The  right  to  it  has 
become  fixed,  al>solutc,  and  capable  of  enforcement  by 
action  at  law.     It  may,  therefore,  be  garnished.^     In 

>  Wincl.cll  V.  Allen,  1  Conn.  .'JSG. 

»  Shewoll  V.  Keen,  2  Wliart.  3.TJ;  30  Am.  Dec.  2GG. 

•Uicliaril^  v.  Griggs,  Hi  Mo.  4Hi;  f}?  Am.  Dec.  240;  Adams  r.  llarrctt,  2 
N.  H.  .374;  EiUto  of  Nerac,  3.*  Cal.  3'J2;  95  Am.  Dec.  Ill;  Fitchctt »-.  Dolbce, 
3  II  irr.  (Del.)  207;  Parks  v.  CuHliman,  U  Vt.  .'J20;  McCreary  v.  Topper,  10  Pa, 
St.  WJ;  liauk  of  Cheater  i;.  lialaton,  7  Pa.  St.  482. 


§  mi        rER."=50NAL  PROrKnTY   SURIECT  TO  EXECUTION.  826 

some  of  the  states  the  ri^^ht  tt>  gamlsli  ihoik  y^  in  the 
Imiuls  of  executors  aiul  aihninistrators  has  been  con- 
ferred l»v  statute,'  It  lias  also,  in  a  few  instances,  anrl 
contrary  to  a  long-  lini'  of  authorities,  been  allirnied  to 
exist  in  the  absence  of  special  statutory  provisions. 
Thus  in  Alabama  and  Indiana,  an  unascertained  dis- 
tributive share  in  an  estate  can  be  bound  by  garnish- 
ment while  in  the  hands  of  the  executor."'^  In  New 
Hanipshire,  an  administrator  of  a  solvent  estate  can  be 
held  as  the  tru.stee  of  a  person  having  a  claim  against 
yuch  estate,  though  such  claim  has  never  been  pre- 
sented to  such  administrator  for  alK)wancc.^  In  Mas- 
sachu.setts,  an  executor  or  administrator  may  now  be 
summoned  and  charged  as  the  trustee  of  an  heir,  lega- 
tee, or  creditor  of  the  deceased,  before  distribution  of 
the  estate,  and  before  it  can  be  known  what  there  will 
be  to  distribute.*  In  Georgia,  an  admini.strator  may 
be  summoned  as  a  garnishee  when  more  than  a  year 
has  elapsed  since  his  appointment.^  In  Pennsylvania, 
a  legacy,  and  also  a  distributive  share  in  an  estate, 
may  be  reached  by  garnishment  before  the  settlement 
of  the  estate.^ 

What  we  have  said  in  this  section  has  been  in  refer- 
ence to  attempts  to  reach  the  interests  of  heirs,  credi- 
tors, or  legatees  in  property  in  the  hands  of  executors  or 
administrators  under  writs  against  such  heirs,  creditors, 

'  Holman  v.  Fisher,  49  Miss.  472. 

'  Terry  v.  Lindsay,  3  Stew.  &  P.  317;  Stratton  r.  Ham,  8  Ind.  84;  G5  Am. 
Dec.  754;  Tillioghast  v.  Jolmsoii,  5  Ala.  514;  Mooro  ?-.  Staintoii,  22  Ala.  834; 
Jackson  r.  .Shipiiian,  28  Ala.  488. 

'Quifgr.  Kittrtdge,  IS  N.  H.  1.37. 

*  Wlicckr  r.  Boweii,  20  Pick.  5G3;  llolbrook  v.  Waters,  I'J  Pick.  354; 
Boston  Bank  r\  Minot,  3  Met.  507;  Cady  v.  Comey,  10  Met.  459;  Hoar  v. 
Marshall,  2  Gray,  251. 

*  Selman  v.  Millikin.  28  Ga.  .3GC. 

*  Loreiiz  r.  King,  .'W  Pa.  St.  93;  Sinnicker  v.  Painter,  32  Pa.  St.  384;  Goch- 
enaur  r.  Iloatettcr,  18  Pa.  Sc.  414;  Baldy  v.  Brady,  15  Pa.  St.  103 


327  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §131 

or   legatees.     But  there   may  be  judgments   against 
executors  or  administrators  in  their  official  capacity,  or 
it  may  happen  that  a  judgment  entered  in  the  lifetime 
of  the  defendant  remains  unsatisfied  at  his  death.     In 
either  case,  satisfaction  may  be  sought  out  of  the  assets 
of  the  deceased.     The  administration  of  these  assets  is 
now   chiefly    confided  to   the   surrogate    and    probate 
courts;  and  judgments,  except  where  they  are  liens  on 
specific  property  of  the  deceased,  are  generally  satisfied 
in  the  due  course  of  administration,  and  not  by  levy 
and  sale  under  execution.     Neither  the  common  law 
nor  any  of  the  statutes  regulating  the  settlement  of  the 
estates  of  deceased  persons  will  permit  an  execution 
against  an  administrator  or  executor,  personally,  to  be 
levied  on  property  held  by  him  in  his  official  capacity.^ 
On  the  otlier  hand,  while  an  executor  or  administrator 
may,  by  misconduct  in  wasting  or  appropriathig  the 
assets  of  the  estate,  become  personally  responsible  to 
the  creditors,  an  execution  against  him  in  his  official 
capacity  does  not,  in  the  absence  of  such  misconduct, 
justify    any    interference   with    his    private    pioperty." 
Where  the  statute  has  not  restricted  the  right  to  issue 
an  execution  and  to  satisfy  it  out  of  the  assets  of  an 
estate,  it  may,  as  a  general  rule,  be  levied  upon  the 
same  property  as   if  the  judgment  debtor  were  still 
surviving.'-      Hence    it  may  bo    satisfied  out   of  prop- 
erty conveyed  to  hinder,  delay,  or  defraud  the  judg- 

1  Fan-  V.  Nuwman,  4  Term  Rep.  021;  McLeod  v.  DrummouJ,  17  Ves. 
108;  Quick  v.  Staines,  1  Bo.s.  &  P.  2'.).");  Satterwaite  v.  Carson,  3  Irecl.  459; 
LesHingr.  Vertreen,  32  Mo.  431;  overruling  Lecoinpto  i'.  Sergeant,  7  Mo.  351, 
and  Tlioina.s  v.  Ilelft-,  9  Mo.  377. 

»  In  Averett  r.  Thompson,  15  Ala.  078,  it  i.s  held  that  an  execution  against 
A  as  administrator  of  H,  l.ut  commanding  tlie  ollicer  to  levy  on  the  goods  of  A, 
authorizes  a  levy  on  the  goods  of  tlie  latter. 

»  Qark  r.  May,  1 1  Masa.  233;  Beall  v.  Oabourn,  30  Md.  8. 


§  i:^^        rKR'OXAL   rUOrrUTY  SURTKiT  to   execution.  329 

uwwt  rrt'tlitor; '  <>r  nut  of  lands  drviscil.  miuI  liy  tlio 
tlovisors  convovtHl  t<>  tliinl  persons  ;■  ov  out  of  lands 
]>artitiiMu-d  nniou'Ljf  tlir  lii'Ii-s.^  The  assets  iA'  the 
(Kveased  may  l»e  taken,  whether  inventoried '  l>y  the 
administrator,  i>r  nnt."  hi  Nit^inia,  a  li'^acy  delivered 
to  a  le'j^atoo,  with  tlu>  ass(>nt  iA'  the  executor  or  adminis- 
trator, is  therehy  plaeed  heyond  the  I'eaeh  of  an  exc- 
eution  a^^ainst  the  assets  of  the  estate."  This  rule, 
thou;4h  onee  maintained  in  i\Iississipi)i/  was  soon  after- 
ward ahandoned.** 

?  132.  Moneys  and  Property  in  the  Hands  of 
Federal,  State,  or  County  Officers  are  also  exempt 
trom  execution  or  garnishment  ao^ainst  a  defendant  to 
whom  they  ma}'  bo  due.  In  the  ease  of  ]3uchanan  v. 
Alexander,  4  How.  20,  attachments  issued  a^'ainst  cer- 
tain seamen,  and  were  laid  on  moneys  due  them  as 
wages,  and  in  the  hands  of  tlie  purser  of  the  frigate 
Constitution.  He,  b}'  order  of  the  Secretary  of  the 
Navy,  disregarded  the  attachments,  and  paid  over  the 
money  to  the  seamen.  Judirment  ha\ing  l)een  entered 
against  the  purser,  an  appeal  was  taken  to  the  supremo 
court  of  the  United  States,  where  a  reversal  was  ob- 
tained, and  the  following  opinion  given:  "The  impor- 
tant (juestion  is,  whether  money  in  the  hands  of  the 

'  Driukwatcr  r.  TJrinkwatcr,  4  Mass.  35."};  Clark  v.  Ilardiman,  2  Leigh,  377; 
Chainl>2rlayne  r.  Temple,  2  liriml.  H'J.");   14  Am.  Dec.  78G. 

'  (lore  t:  Brazier,  3  Ma.s.s.  o23;  3  Am.  Dec.  182;  Bigelow  v.  Jones,  4  Mass. 
512;  Wyman  r.  Brigilen,  4  Mass.  150. 

»  Norwell  r.  Brag.lon,  14  Me.  320. 

•  Weeks  f.  fjililji,  4  Ma^s.  74. 

»  Pre.-»cott  r.  Tarl)ell,  1  Mass.  204. 

•  Burnley  r.  Lanljert,  1  Wash.  (Va.)  308;  lianJoliih  v.  lUndolph,  C  liand. 
liW;  Dunn  r.  Amey,  1  Leigh,  472;  Sampson  v.  Bryce,  5  Munf.  175. 

'  Turner  r.  Chambers,  10  Sme.les  &  M.  .308;  48  Am.  Dec.  751. 

•  Smith  r.  State,  13  Smcdea  &,  M.  140;  Vanliouten  i'.  licilly,  0  Suiedea  &  M. 
440. 


32a    PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.   §  132 

purser,  though  due  to  the  seamen  for  wages,  was  at- 
tachable. A  purser,  it  would  seem,  cannot,  in  this 
respect,  be  distinguished  from  any  other  disbursing 
agent  of  the  government.  If  the  creditors  of  these 
seamen  may,  by  process  of  attachment,  divert  the  pub- 
lic money  from  its  legitimate  and  appropriate  object, 
the  same  thing  may  be  done  as  regards  the  pay  of  our 
officers  and  men  of  the  army  and  of  tlie  navy ;  and  also 
in  every  other  case  where  the  public  funds  may  be 
placed  in  the  hands  of  an  agent  for  disbursement.  To 
state  such  a  principle  is  to  refute  it.  No  government 
can  sanction  it.  At  all  times  it  would  be  found  embar- 
rassincr,  and  under  some  circumstances  it  miq;ht  be 
fatal  to  the  public  service.  The  funds  of  the  govern- 
ment are  specifically  appropriated  to  certain  national 
objects,  and  if  such  appropriations  may  be  diverted  and 
defeated,  by  state  process  or  otherwise,  the  functions  of 
the  government  may  be  suspended.  So  long  as  money 
remains  in  the  hands  of  a  disbursing  officer,  it  is  as  nmeh 
money  of  the  United  States  as  if  it  had  not  been  drawn 
from  the  treasury.  Until  paid  over  by  the  agent  of 
the  government  to  the  person  entitled  to  it,  the  fund 
cannot,  in  any  legal  sense,  be  considered  a  part  of  his 
eflfects.  Tlie  purser  is  not  the  debtor  of  the  seaman." 
Goods  being  im[)orted  into  the  United  States  are, 
"from  the  moment  of  tlieir  arrival  in  port,  in  legal  con- 
templation, ill  custody  of  tlie  United  States."  "  Now,  an 
attachment  of  such  goods  by  a  state  officer  presupposes 
a  ri<dit  to  take  the  possession  and  custody  of  those 
goods,  and  to  make  such  possession  and  custody  exclu- 
sive. It"  the  oflicer  attaches  on  mesne  process,  he  has 
a  riglit  to  hold  the  possession  to  answer  the  exigency 
of  that  process.     If  he  attaches  upon  an  execution,  he 


5 1:>2      rr.K.'^oNAL  rRoriT.TY  surtkct  to  KXF.rrTioN.       sno 

i^<  IjoimuI  to  srll  or  may  soil  tlu»  j^tnuls  witli'm  a  liinitcnl 
jH^rii'il,  aiul  thus  virtually  (lisjtlaoo  tlio  custody  of  tlui 
I'lutoil  States.  Tlio  act  of  Coii«^ress  roconni/.os  no 
such  autlu>rity,  and  admits  ol'  no  such  oxcrcisc  of  liL^ht." 
'•  III  short,  tlu*  United  States,  havin;4  a  lion  on  tlui 
i,^nHls  for  the  |)aynient  of  the  duties  accruiiiL!^  thereon, 
and  heinij  entitled  to  a  virtual  custody  of  them  from  tho 
time  of  their  arrival  in  port  until  thc>.  duties  arc  paid  or 
secured,  any  attachnuMit  l»y  a  state  ollicer  is  an  inter- 
ference with  such  lien  and  right  of  custody;  and  being 
repu'j:nant  to  the  laws  of  the  ITnited  States,  is  void."  ^ 
The  same  reast)ning  ap})lies  to  j)roperty  iu  hondi^d  ware- 
houses of  the  United  States,  upon  which  moneys  arc 
due  for  internal  revenue  taxes.  It  is  in  custody  of  the 
law,  and  can  neither  be  reached  by  direct  seizure  nor 
by  garnisliment."  Proceedings  by  way  of  garnishment 
against  either  a  state  or  the  United  States  arc  mani- 
festly inadmissible,  on  other  grounds.  Thus  tlie  only 
mode  in  which  a  garnishment  can  be  made  etlectivc  is 
by  the  entry  of  judgnu'nt  for  the  debt  garnished.  But 
the  United  States  and  each  state  thereof  is  a  sovereign, 
and  not  subject  to  be  called  before  its  courts,  except  in 
case3  where  it  has  expressly  assented  to  their  assuming 
jurisdiction.  Nor  will  either  of  these  sovereigns  per- 
mit their  imnmnit}'  from  the  process  of  their  courts  to 
be  evaded  '*  by  ignoring  the  state  in  their  suits,  and 
proceeding  directly  against  the  officer  having  the  cus- 
tody of  the  moneys  sought  to  be  reached."  Hence,  for 
want  of  power  to  enter  judgment,  a  garnishment  against 
a  state  or  against  the  United  States  is  necessarily  in- 

>  Harris  r.  Dentiie,  3  Pet.  .304. 

'  May  r.  iloaglan,  'J  IJusli,  191;  Fisher  v.  Dandiatal,  9  Fed.  liep.  145;  Mc- 
CulloQgh  r.  Large,  20  Fed.  liep.  309. 


331  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  1S2 

efiectual.^  Another  very  serious  objection  to  the  gar- 
nishment of  a  state  or  county  or  of  the  United  States, 
or  of  any  officer  of  either,  is  its  probable  interference 
with  the  administration  of  the  government.  It  is  not 
consistent  with  the  state's  "  interests,  nor  the  proper 
administration  of  public  affairs,  that  her  officers  shall 
be  arrested  in  their  public  duties  and  required  to  an- 
swer before  the  courts  for  funds  or  securities  committed 
to  their  custody  for  a  specific  purpose,  under  authority 
of  public  law.  The  treasurer  of  state  is  one  of  tlie  most 
important  officers  of  the  commonwealth,  with  grave, 
ardut)us,  and  difficult  duties  to  perform.  It  is  impos- 
sible to  foresee  the  mischiefs  and  embarrassments  that 
will  ensue,  if,  in  addition  to  these  duties,  he  is  to  be 
involved  in  the  conffict  of  creditors,  to  answer  innumer- 
able rival  attachments,  employ  counsel,  answer  inter- 
ro'^atories,  and  otherwise  consume  time  and  attention 
which  should  be  devoted  exclusively  to  public  inter- 
ests."^ When  an  attempt  is  made  to  garnish  the  salary 
of  any  public  officer,  the  further  objection  exists  that 
his  continuance  in  the  service  of  the  public  may  be  de- 
pendent on  Ills  being  able  to  regularly  draw  such  salary 
and  devote  it  to  the  maintenance  of  himself  and  family, 
and  that  the  interest  of  the  public  is  paramount  in  im- 
portance to  that  of  the  creditors.  For  these  various 
reasons  it  lias  uniformly  been  held  that  money  in  the 
hands  of  state  ^  or  county  officials,*  whether  for  the  pur- 

»  Tracy  >•.  HnriiLucklc,  8  IJusli,  IVM);  Tunstall  r.  Worthington,  Hemp.  G02; 
Roller.  Aii.les  Iin.  Co.,  23C;ratt.  511;   14  Am.  Kei).  147. 

>  Roll..  V.  An.lc.^  las.  Co.,  2:M!ratt.  50<t;  14  Am.  lUp.  147. 

•Diviiio  r.  H.irvie.  7  T.  13.  Mon.  439;  18  Am.  Dec.  194;  IJaiik  of  Toiiuesseo 
V.  DibrcU,  3  .Siieo.l.  379;  Wild  v.  Fergiwon,  23  La.  Ann.  752;  Stillman  r.  Isliam, 
11  Conn.  124;  .McMcckiii  ?•.  State,  4  Kiig.  553;  Train  r.  Ilerrick,  4  Gray,  534; 
SwciiHoTi  v.  Turnor,  70  N.  C.  ll'». 

M;ilii»an  <•.  C.utra  Costa  County,  8  Cal.  52;  08  Am.  Dec.  290;  Garnishees 
V.  Root,  8  .M.l.  9.".;  Wallace  r.  L;iwyer,  54  InJ.  501;  23  Am.  Rep.  CGI;  contra: 


S  in3      rnusoNAL  itvOPEIity  sudject  tc)  i:xkcution.       r.n2 

jKiso  i)f  jviyiiivj  sjilarv  due  an  olliciT  or  cmitloyt'c.  tu-  of 
satisfy injjf  any  otlu-r  » laim.  is ni>tsul)ji'c(  (oi-xcciilioii  nor 
gamislimont.  Tlu' doctrine  is  also  upjtlicaMc  tt>  money 
ill  llio  liamls  of  soluml  iliivctors,  or  of  tluii-  treasurer, 
aiul  duo  to  teachers  for  services  porforined  in  tlic  pub- 
lic scliools.' 

ji  133.  Money  Hold  by  Oflacers  of  Municipal  Cor- 
porations lias,  in  ( 'onneetii'ut,-  Iowa,"'  l\<ntneky,* 
Khode  Islanil,"  New  llanipsliire,"  Oliio,"  bien  lield 
subject  to  «^arnislinient  under  writs  against  the  j)cr- 
sons  to  whom  such  money  was  (hie.  In  the  three  hist- 
uanied  states,  the  statute  autlioiizcd  tlie  garnishment 
of  any  corporation  possessed  of  any  money  t)f  the 
debtor.  These  terms  were  considiied  to  be  so  com- 
prehensive as  to  eml»raee  munieii>al  as  well  as  other 
corporations.  In  the  two  other  states  named,  no  stress 
was,  in  the  decisions,  laid  ujion  any  special  or  peculiar 
statutory    j>rovisions.      ]>ut,   upon    principle,    there    is 

Adams  r.  Tyler,  I'Jl  Mass.  380;  (icer  v.  Chapel,  11  flray,  18;  Ward  r.  Hartford 
Co.,  12  Conn.  4')'.1;  <healy  r.  Brewer,  7  Mass.  27)9.  In  thi.s  l.iat  i-a-so  tlie  court 
said:  "A  public  orticer,  who  h;i3  money  in  his  hands  to  satisfy  a  demand,  hut 
vrhicb  ij  upon  him  merely  as  a  puhlic  officer,  cannot  for  that  cause  ho  adjudged 
a  trustee.  A  contrary  decision  would  he  mischievous,  as  will  appear  from  this 
single  cause:  that  it  would  suspend,  during  the  pendency  of  an  action,  a  pos- 
sibdity  of  settling  the  accounts  of  the  officer,  and,  it  may  he  added,  that  it 
would  uureaionahly  compel  him  to  attend  courts  in  every  county  of  the  com- 
monwealth." 

>  Due!;ky  r.  Eckert,  3  Pa.  St.  .3G.S;  45  Am.  Dec.  G30;  Mulli.^on  r.  Fisk,  43 
111.  1  ]'.';  Row  f.  Allen,  10  N.  II.  90;  Bivens  r.  Harper,  59  111.  21;  Allen  v.  Rus- 
sell, 78  Ky.  105. 

»  Kray  r.  Wallingford,  20  Conn.  41G. 

*  Walcji  r.  City  of  Mu.scutiae,  4  lowa,  302.  But  the  statute  has  now  taken 
away  the  ri;.'ht  t<i  ({arnihh  a  iimnicipal  curporatic>a  in  this  sUite.  Clapp  v. 
Walker,  25  lowa,  315. 

*  R'Mlinan  r.  Musitelman,  12  Bush,  354;  23  Am.  Ilep.  724. 
»  WiUon  r.  Lewis,  10  R.  I.  285. 

*  Whidden  r.  Drake,  5  N.  H.  1.3. 

^  City  of  Newark  r.  Funk,  15  Ohio  St.  4C2,  under  statuto  authorizing 
gamiabment  of  bodies  politic. 


333    PERSONAL  PROPEETY  SUBJECT  TO  EXECUTION.   §  rs 

DO  reason  why  the  rule  appHcable  to  a  state  or  county 
official,  or  to  a  treasurer  of  a  board  of  school  directors, 
should  not  also  be  applied  to  officers  of  towns  and 
cities.  They  are  all  mere  custodians  of  public  moneys, 
with  their  duties  and  responsibilities  created  and  pre- 
scribed by  the  laws  creating  their  respective  offices, 
and  prescribing  the  duties  thereof  "As  municipal 
corporations  are  parts  of  the  state  government,  exer- 
cising delegated  political  powers  for  public  purposes, 
the  rule  which  prevents  an  attachment  from  being 
levied  upon  a  claim  of  one  state  officer  upon  funds  in 
the  hands  of  another,  applicable  to  its  payment,  must 
apply  with  equal  force  to  a  case  like  the  present.  If 
an  argument  against  the  right  to  attach,  based  upon 
inconvenience,  can  have  an  influence  in  any  case,  it 
surely  should  do  so  where  the  officers  of  a  large  city 
are,  necessarily,  very  numerous."^  Where  an  attempt 
was  made  to  attach  mono}"  due  from  a  city  to  a  police 
officer  ftr  iiis  services,  the  supreme  court  of  Alabama 
said :  "But  does  not  public  policy  protect  the  wages  of 
a  police  officer  from  attachment?  Money  due  from  a 
government  or  state  is  thus  guarded  for  the  benefit  of 
the  public.  The  law  says  the  state  must  be  permitted 
to  select  its  own  officers,  from  any  condition  or  position 
in  society,  and  cannot  be  made  subject  to  the  power  of 
individual  creditors  to  drive  tlieir  selection  from  service 
when  tliey  choose;  nor  can  the  creditor  be  permitted 

»  Holt  r.  Experience,  20  Ga.  113;  McLcll;m  r.  Y..ung,  'A  (la.  399;  '21  Am. 
Rep.  27<>;  .M.Miro  >•.  Mayor,  8  Heisk.  Hr>0;  MempluH  r.  Ivwki,  9  Hoisk.  511;  'J4 
Am.  Rep.  327;  Hutriiaiii  r.  City  of  Riciiie,  2(»  Mc.  449;  Mayor  of  RiUimoro  i*. 
Root,  8  Mil.  Krj;  <i3  Am.  Dec.  GU2;  Ilawlhorii  v.  City  of  St.  Louis,  47  Am. 
Doc.  141;  11  Mo.  59;  Fortune  r.  City  of  St.  Louis,  23  Mo.  239;  Merwin  i'. 
Chicago,  45  111.  193;  92  Am.  Dec.  204;  Triclwl  v.  Collmrn,  64  111.  370;  Mc- 
Dfiugal  c.  Hennepin  Co.,  4  Minn.  184;  Bnwlley  v.  Cooper,  G  Vt.  121;  Hurnham 
r.  City  of  Fon.l  <lu  La<-,  15  Wih.  193;  82  Am.  Doc.  008;  City  of  Erio  v.  Knapp, 
29  Pa.  St.  173.     See  TcUowb  v.  Duncan,  13  Met.  332. 


§§  i:u.  ns   rK.nsoNAL  rnoPKiiTY  suiuect  to  kxkc^'TIOn.   3;u 

to  j>aralyzo  the  I'nonj^y,  or  in  any  way  (.)  Crip])!!'  the 
efluMouoy.  of  a  state's  otlieor  by  tnikinLC  tVnm  Iiiiii  tlie 
moans  atVonled  hy  the  stat(\  which  ^ivis  hiiad  and 
clothing  to  liiuisrlt'  and  iamily.  'I'ht>  yoviiMUutut  of  a 
city  is  a  part  ^A'  the  state  ^nvrnimnit.  It  is  the 
exereise  iA'  a  |u)rti(>n  «>f  thi'  state  s(»\<'i"ti'Lj;nty,  and 
should,  in  hkr  nianmr,  l»i'  uplu-ld  hy  the  same  puhlie 
poliey."  ' 

^  134.  An  Attorney  at  Law  is,  for  somc^  purposes,  a 
puhhe  olliccr.  As  sueh  i)ilieii-,  lie  is  so  far  under  the 
control  o\'  the  eourt  that  it  niay,  in  some  instances, 
conipel  him  to  j»erf()rm  i^ratuitous  services;  and  may, 
in  all  Ciises,  requii'e  liiin  to  dischange  the  dutie>  of  his 
office  faithfully,  honestly,  and  without  any  hrcacli  of 
professional  decorum.  But  when  an  attorney  collects 
moneys  for  his  client,  even  l)y  means  of  a  suit,  such 
money  is  never  treated  as  hring  in  custody  of  tlie  law, 
but  rather  as  monc}'  collected  by  an  agent  for  the 
benefit  of  his  ]^rineipal.  It  is,  to  the  same  extent  aa 
money  in  the  hands  of  any  other  agent,  liable  to  exe- 
cution.'^ 

g  1G5.  By  the  Levy  upon  the  Goods  of  a  Defendant 
by  virtue  of  an  execution  or  attachment,  the  officer  ac- 
quires a  special  property  therein,  entitling  him  to  their 
possession  and  control.  They  are  tiiereby  placed  in 
the  custody  of  the  law.  Another  officer,  acting  under 
another  writ  of  attachment,  has  no  right  to  interfere 

'  Mayor  of  Mobile  r.  Rowland,  20  Ala.  501 ;  Clark  v.  School  Commisaioners, 
30  Ab.  6J1. 

'  K:lcy  r.  Hir«t,  '2  Pa.  St.  3^10;  Staj-lca  v.  SUplc8,  4  (Jrfciil.  C):V2;  Mann  i;. 
Buford.  .3  Ala.  31 'J;  37  Am.  Dvc.  CO  I;  Tucker  r.  Butts,  (iOa.  nsO;  Coburn  v. 
AiiJiart,  3  MaM.  319;  Tbayer  v.  Shermau,  12  Masa.  441;  Woodbridge  r.  Morse, 
5  N.  II.  510;  Carr  r.  Benedict,  48  Ga.  431;  White  r.  Bird,  20  La.  Ana.  188; 
90  Am.  Deo.  303. 


335  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  135 

with  them.  As  he  cannot  reduce  them  into  his  pos- 
session, he  can,  according  to  the  preponderance  of  the 
authorities,  make  no  vahd  levy;^  but  in  one  case  it 
was  said  that  he  could  levy,  though  he  could  not  re- 
move.^ Even  if  the  goods  are  taken  from  the  officer 
under  a  writ  of  replevin  and  delivered  over  to  a  third 
person,  they  still  remain  in  custodia  Icgls,  to  the  extent 
that  they  cannot  be  levied  upon  under  process  against 
the  ori<xinal  defendant.^^  But  the  officer  who  has  levied 
upon  property  may  hold  the  same  to  answer  for  subse- 
quent writs  which  come  into  his  hands  while  tlie  first 
levy  remains  in  force.  The  mere  receipt  of  the  subse- 
quent writ  operates  as  a  constructive  levy  upon  all 
property  actually-  or  constructively  in  his  possession 
under  a  j)rior  writ.^  A  lev}^  b}'  one  deputy  operates 
as  a  constructive  levy  on  the  same  propert}'  under  a  sub- 
sequent execution  delivered  to  another  deputy  of  the 
same  sheriff.  And  this  is  true,  although,  before  the 
receipt  of  the  second  writ,  the  property  was  removed 
to  another  state,  and  remained  there  until  after  the 
return  day  of  such  writ."'     But  an  unauthorized  levy 

»  Winegardiier  v.  Hafcr,  15  Pa.  St.  144;  Buckcy  r.  Snouffer,  10  Md.  149; 
09  Am.  Dec.  l'_"J;  Vaa  Loan  r.  Kline,  10  Johns.  129;  Dubois  r.  Harcout,  20 
WcnJ.  41;  Mooro  v.  Withenburg,  13  La.  Ann.  22;  Lewis  v.  Buck,  7  Minn.  IW; 
82  Am.  Dec.  73;  Ilartwell  v.  Bissell,  17  Johns.  128;  Rogers  v.  Daruaby,  4  B. 
Mon.  241;  Taylor  r.  Carryl,  20  How.  583;  Hamilton  v.  Reedy,  3  McCord,  38; 
Hagan  r.  Luca.s,  10  Pet.  400;  The  Oliver  Jordan,  2  Curt.  414;  Peck  r.  Jenness, 
7  How.  G12;  Jones  S.  &  P.  Co.  v.  Case,  20  Kan.  299;  40  Am.  Rep.  310;  Jones 
S.  &.  P.  Co.  V.  Hentig,  29  Kan.  75. 

'  Benson  t\  Perry,  55  Barb.  G20. 

»  Acker  V.  White,  25  Wend.  G14;  Rhines  v.  Phelps,  3  (Jilm.  455;  Sdlcck  v. 
Phelp-s,  11  VVid.  380;  Hagan  r.  Lucas,  10  Pet.  4(K);  Ward  r.  Whitney,  13  Piiila. 
7;  Bates  County  National  Bank  v.  Uwen,  79  Mo.  429;  Pipher  r.  Fordyce,  88 
lad.  43G. 

♦  Van  Winklo  r.  LMall,  1  Hill,  559;  Crcsson  v.  Stout,  17  Johns.  11(1;  8  Am. 
Dec.  373;  Birdieyo  r.  Ray,  4  Hill,  100;  Collins  v.  Yeweua,  10  Ad.  &  E.  570; 
Bauk  of  Lansiiigburgli  v.  Crary,  1  Barb.  542. 

»  HuMcU  r.  Ciiblw,  5  Cow.  390. 


§  155        TERi^ONAL  rKOPERTY   Sl"T\TKCT  TO   EXECUTION.  330 

iloos  lu^t  ]>ut  prDpcrtv  in  custtKly  of  law.  1  Iciicc  j>r<>p- 
orty  soizcnl  l»y  an  olliccr  contrary  to  |)laintiirs  instruc- 
tions was  licKl  to  1)0  liable  to  seizure  under  another 
writ.*  (lenerally  a  court  cannot  brini^  bcfoie  it,  or 
subjei't  to  its  jurisiiiction,  e.\ce|'t,  in  iirocicdinL^^s  in  ron, 
the  titles  or  intt^rests  of  any  jiersons  other  than  the 
j>arties  to  the  suit  and  those  ac(|uirin!j:  iVom  or  under 
them.  It  would  seem  that  in  a!i  action  between  A 
and  }\  nothiuLT  could  be  broui^ht  into  the  custody  of 
the  law  which  did  not  beloni;  to  A  or  11  It  is  true 
that  an  otlicer  seizin^c  property  under  process  acts  as 
the  agent  i>f  the  court  out  of  which  the  process  issued, 
and  his  possession  becomes  the  possession  of  the  court. 
But  lie  is  generally  regarded  as  the  agent  of  the  court 
onl}-  while  he  does  what  the  process  lawfully  conunands 
him  to  do;  and  his  seizure  of  something  which  he  had 
no  right  to  seize  ought  not  to  be  regarded  as  the  act 
of  the  court,  lor  the  court  ought  not  to  be  presumed 
to  intend  that  its  agent  should  act  wrongfully.  The 
courts  of  each  state  or  nation  are,  however,  unwilling 
that  the  courts  of  any  other  sovereignty  should  exer- 
cise any  authority  which  might  impair  the  jurisdiction 
of  the  former  by  taking  property  out  of  the  possession 
of  their  <jfficers;  and  they  will  not  permit  the  courts  of 
another  jurisdiction  to  determine  whether  such  posses- 
sion was  taken  rightfully  or  not.  If  an  officer  acting 
under  a  writ  of  execution  or  attachment,  issued  out  of 
a  court  of  the  United  States,  seizes  the  })roperty  of  a 
stranger  to  the  writ,  he  is  confessedl}'  guilty  of  an  act 
for  which  his  writ  affords  no  ju.stification,  and  he  may 
be  sued  in  a  state  court  for  the  tort  conunittcd  by 
Lira.''      But  the  property   thus   wrongfully  seized  is, 

>  Sherry  r.  Schuyler,  2  Hill,  204. 

»  Buck  f.  ColUith,  7  Minn.  310;  82  Am.  Dec.  91,  aflinncJ  3  Wall.  343. 


337  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §136 

by  the  national  courts,  nevertheless  treated  as  in  their 
custody,  and  they  will  not  permit  it  to  be  taken  by  an 
officer  of  a  state  court  under  any  writ  whatsoever.  If 
the  true  owner  wishes  to  secure  its  return  to  him,  he 
must  resort  to  the  court  in  whose  custody  it  is,  and 
vindicate  his  claim  by  some  ancillary  proceeding  there 
taken.  ^ 

§  136.  Property  Conveyed  in  Fraud  of  Creditors 
—  General  Rule.  —  The  struo-o^le  between  fraud  and 
justice  seems  to  be  as  old  as  time,  and  bids  fair  to 
prove  as  endless  as  eternity.  Fraud  has  always  sought 
to  interpose  itself  as  a  shield  to  save  the  debtor  from 
the  execution  of  the  law.  The  law  has  retaliated  by 
puttinj:,'  its  mark  of  condemnation  upon  fraud  in  every 
distinj^uishable  form;  and  fraud,  to  escape  the  just 
judgment  of  the  law,  has  concealed  its  identity  by  every 
conceivable  disguise,  and  pursued  by  artifice  and  am- 
buscade the  struggle  in  which  open  contest  was  sure 
defeat.  Whoever  ofoes  out  with  an  execution  to  seek 
the  fruits  of  his  judgment  is  too  apt  to  find  that  fraud 
has  forestalled  liim.  It  then  becomes  his  business  to 
pursue  those  fruits,  wherever  fraud  has  taken  them ;  to 
wrest  them  from  the  possession  of  his  adversary,  wher- 
ever tliey  may  be  found;  and  to  prepare  himself  to 
show  that  tlie  refuije  whence  he  has  wrested  them  is 
still  the  refuge  of  frauil.  In  many  instances  the  aid  of 
equity  is  invoked.  But  gen<.'rally  this  is  unnecessary; 
for  a  transfer  made  to  hinder,  delay,  or  defraud  credi- 
tors, while  as  between  the  parties  it  conveys  the  title, 
has  as  against  a  creditor  proceeding  under  execution 

'Beckett  r.  SherifT.   21    Fe<l.  Rep.   .32;  Covell   v.   Heyiiian,    111    U.  S.    ITfi; 

Frecmari  r.  Howe,  21  How.  4.'>0;  Krippomlnrf  t:  Hytlc,  110  U.  S.  27(>;  L<'wi» 

r.  Buck,  7  .Minn.    104;  82  Am.  Due.  1.1;  Uuitod  SUtca  v.  DauUlcr,  3  Wooda, 

719. 

Vol.  1.  — 22 


§  131'.        PF.RSOXAL  rnorERTY   SUIUECT  TO   FAFa^I'TION.  3:i8 

no  sui-h  oiYcct.  As  ULjainst  tlif  tVaudiil.  nt  tianslorec, 
the  iMvilitor  iiuiv  soize  the  \nn\H^viy,  wlutlur  real  or 
jH'i-sniKil,  as  tliat  of  tl»o  iVaiuluKiil  vnidor,  aiul  may 
proootnl  to  sell  it  uiulir  t>xocnitit)n.  Tlio  title  traiis- 
ttTivil  l>y  such  .sale  is  ii(<t  ainrrc  i(juity,  not  tiiori<^'lit 
to  control  tlie  loi^al  titlf.  and  to  luivo  tlir  IVaiululont 
transfer  vaaitcil  by  some  appropriati'  proeeedini,^  it  is 
the  lei^al  title  itself,  auainst  \vhieh  the  iVaudulent  trans- 
fer is  no  transfer  at  all.'  A  creditor  liavin;.;-  a  Jud<i:- 
inent  may,  if  he  thinks  it  advisable,  ask  the  aid  of 
ei[uity,  but  he  cannot  be  compelled  to  do  so.  His 
jud;4ment  is  an  etlective  lien  against  real  estate  fraudu- 
lently convoyed,  and  he  may  rely  upon  it  as  such  in 
all  contests  not  involving-  the  rights  of  bona  jidc  pur- 
chasers or  encumbrancers,  who  have  acted  upon  the 
apjiarent  title  and  without  any  actual  or  imi)lied  notice 
of  the  fraud.-  If  other  creditors  proceed  in  equity 
to  have  the  conveyance  adjudged  fraudulent,  and  a 
receiver  of  the  pro[»erty  appointed  and  a  sale  made 
by  him,   such  sale   is  sul-ordinate  to  any  pre-existing 

'  Ik-rgenr.  Snedeker,  8  Abb.  N.  (".  58;  O'Brien  r.  Brow-ning,  -10  How.  Pr. 
11.3;  War.leu  r.  Browniug,  12  Hun,  491);  High  r.  Ncluis,  14  Ala.  .'550;  48  Am. 
Dec.  UW;  Johnson  r.  Harvey.  '2  Pcnr.  k  W.  82;  21  Am.  Dec.  42G;  Stewart  r. 
McMiun,  5  Watts  &  S.  100;  3U  Am.  Dec.  115;  Scully  ?•.  Keans,  14  L.i.  Ann. 
430;  C'.lcisca  v.  McHatton,  14  I^.  Ann.  500;  Hall  i\  Sands,  52  Me.  355;  Oor- 
merly  r.  Chapman,  51  Ga.  425;  Pratt  v.  Wheeler,  G  (Iray,  520;  Austin  v.  Bell, 
20  Johna.  442;  11  Am.  Dec.  207;  Lowry  r.  Orr,  1  Gilm.  70;  Gooch's  Caae,  ft 
Coke.  GO;  Jacohy's  Appeal,  G7  Pa.  St.  434;  Hoflfman's  Api»eal,  44  Pa.  St.  95; 
Eastman  r.  Schettlcr,  13  Wis.  324;  Pepper  r.  Carter,  11  Mo.  540;  Barr?'. 
Uattli.  3  Olno,  527;  Pussell  r.  Dyer,  33  N.  H.  180;  Duvall  r.  Waters,  1  Bland, 
ft<y.»;  18  Am.  Dec.  350;  Middleton  v.  Sinclair,  5  Crauch  C.  C.  400;  Lawrence  r. 
Lipl>cnc..tt,  1  Halst.  473;  Croft  ?•.  Arthur,  3  Des-ius.  I-^j.  223;  Shears  r.  Rogers, 
3  iVini.  A;  Adol.  3G3;  Allen  r.  Berry,  50  Mo.  00;  P.yland  r.  Callison,  54  Mo. 
613;  Supk-j  r.  Bra.lky.  23  Conn.  lf,7;  «U)  Am.  Dec.  G30;  F<iwler  r.  Trehein,  10 
Ohio  St.  403;  01  Am.  Dec.  05;  ManhatUn  Co.  v.  Evertson,  0  Paige,  457;  Foley 
r.  Bitter,  W  Md.  644);  Siiur  r.  Sutler,  1  West.  L.  Mo.  317.  But  Focum  r. 
Bullit.  17  Am.  Dec.  184,  Payno  v.  Graiiam,  23  La.  Ann.  771,  and  CoUint  v. 
Shaffer,  20  Ia,  Ann.  41,  ueem  to  oppouotho  general  rule 
»Sc-e§3  140,  141. 


339  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  136 

judgment  liens,  and  the  holders  of  such  liens  cannot 
be  compelled  to  relinquish  them  nor  to  accept  any 
distribution  of  the  proceeds  which  ignores  their  priori- 
ties.^ If  the  vendor  of  a  sale  fraudulent  as  aoainst 
creditors  were  to  die,  the  vendee  might  at  the  com- 
mon law  be  chartifed  as  his  executor  de  son  tort,  "  and 
this,  too,  although  there  was  a  rightful  executor  or 
administrator";-  and  if  the  vendee  were  to  die  also, 
his  executor  or  administrator  could  also  be  proceeded 
against  as  executor  de  son  tort.^  And  what  is  true 
of  fraudulent  transfers  is  equally  true  of  fraudulent 
mortgages,  liens,  judgments,  executions,  and  all  similar 
devices  for  hindering,  delaying,  or  defrauding  creditors. 
Propert}'  held  under  and  by  virtue  of  a  fraudulent  lien, 
execution,  or  transfer  is  subject  to  execution  precisely 
as  if  such  transfer  had  not  been  made  and  such  lien  had 
not  been  given.*     That  such  lien  is  pursued  to  judg- 

>  Chautauque  Co.  Bank  r.  Risley,  19  N.  Y.  3G9;  75  Am.  Dec.  347;  Sanders 
r.  Wagonseller,  19  Pa.  St.  2j2. 

»  Babcock  r.  Booth,  2  Hill.  181;  38  Am.  Dec.  578;  Osborne  r.  Moss,  7  Johns. 
IGl;  5  Am.  Dec.  2.52;  Ashby  r.  Child,  Style,  384;  Tucker  v.  WiUiams,  Dud. 
329;  31  Am.  Dec.  5C1. 

*  McMorine  r.  Storey,  4  Dev.  &  B.  189;  34  Am.  Dec.  374. 

♦  Robinson  r.  Holt,  39  N.  H.  557;  75  Am.  Dec.  233;  Fischel  r.  Keer,  45  N. 
J.  L.  507;  Switzer  r.  Skile.i,  3f;ilm.  529;  44  Am.  Dec.  723.  Aa  to  mortgages, 
eeo  Angier  v.  A-sli,  O  Fost.  99;  Brown  v.  Snell,  4G  Me.  490.  In  the  c;ise  of 
Booth  I*.  Buucc,  33  N.  Y.  139,  88  Am.  Dec.  .372,  members  of  an  embarrassed 
coriK)ration  formed  a  nf;w  corporation,  to  which  they  transferred  all  the  a,sscts 
of  tlio  old  one.  Tliis  tran.saction  was  declared  roid  as  against  tlie  creditors  of 
the  old  coq)oration,  and  they  were  allowed  to  levy  upon  the  property  as  though 
no  transfer  had  been  made,  the  court  quoting,  with  approval,  the  following 
language  from  another  decision:  "Deeds,  obligations,  contracts,  judgments, 
and  even  cori>orate  bodies,  may  bo  instruments  through  which  parties  may 
obtain  the  mtwt  unrighteous  advantages.  All  such  devices  and  instruments 
have  liocn  resorted  to  to  cover  up  fraud;  but  whenever  the  law  is  invoke<l,  all 
■uch  instrunient«  are  declared  nullities;  they  are  a  perfect  dead  letter;  the  law 
looks  uiKin  them  as  if  they  ha<l  never  been  executed.  They  can  never  bo  jus- 
tiPed  nor  sanctified  by  any  new  Khapo  or  cover,  b^'  forms  or  recitils,  by  cove- 
nants or  sanctions,  which  the  ingenuity,  or  skill,  or  geuuis  of  the  rogue  may 
deviac." 


§  iru*.      rr.usoNAi.  ruorKRTv  srwEcr  to  EXErrnoN.       mo 

liioiit.  and  tlu'  jiiil^Mii  lit  is  in  tmn  follMwcd  l»y  t'\<>oii- 
tiuii  uiul  siiK',  is  iminatcrial  as  aijtaiust  acroditor  who  is 
not  a  jKirtv  tosuch  jiulij^iurnt,  for  tlio  Tumj,  jiuli^intut,  ami 
siilo  taktii  in  tlioa^gi'i'i^ato amount  only  ti>  a  iVamlulcnt 
convoyniioo.  1  lomv,  if  a  framluhnt  niortgaufe  l)o  «i^ivon 
and  foroclosoil,  a  civditor  not  a  jiarty  to  tlu»  foreclosure 
mav  priK'oi'd  io  sol)  umlrr  \i\s  i>X(.>cution  w  itli  like  cllrct 
as  if  no  nh)rtLCa|j;e  had  been  ext-euUd  and  no  dccne  of 
foreclosure  entered.*  No  distinction  can  he  made  be- 
tween a  transfer  or  lim,  jtaitly  honest  and  paitly  in 
fraud  t)f  creditors.  If  an}'  portion  of  its  purpose  is  to 
hindi'r,  dcla}',  or  defraud  creditors,  the  law  denounces  it 
as  void,  not  with  res|)ect  to  sucli  purpose  merely,  but 
wholly  and  unconditionally.  "  The  unlawful  design  of 
the  parties  cannot  bi' conlint'd  to  one  particular  parctl 
of  property.  Entire  honesty  and  good  faith  is  neces- 
sary to  render  it  valid  ;  and  whenever  it  indis})utably 
appears  that  one  object  was  to  defraud  creditors  to  an}'' 
extent,  the  entire  in.strument  is,  in  judgment  of  law, 
void.""  A  debtor  in  failing  circumstances  may  seek  to 
avoid  his  creditors  by  j)urchasing  property,  and  having 
the  title  taken  in  the  name  of  some  friend  or  relative. 
This,  being  a  device  to  hinder,  delay,  or  defraud  credi- 
tors, may  be  thwarted;  or,  more  prt»perly  speaking,  the 
property  thus  conveyed  may  be  made  to  contribute  to 

»  li'-ckr  r.  Bullitt,  3  A.  K.  Marah.  'JSO;   1.3  Am.  Doc.  IGl. 

'  Uu.v,oll  r.  Wmuu,  37  N.  V.  .'/Jl;  4  Abb.  I'r.,  N.  S.,  liSi;  '.17  Am.  Dec.  755; 
Cktlliiu  r.  IMant^rn,  2  Wilij.  151;  Malevcrcr  r.  IleilNliaw,  1   Mod.  35;  Nort*)n  v. 

< •.'•»,   Hob.    12  c;  (Jrovcr  r.   Wakeman,    11   Weiul.    IIW;  25  Am.   Dec.  024; 

.  e  r.  Cairo*,  Ilopk.  Cli.  373;  5  Cow.  547;  15  Am.  Dec.  477;  IlyMlop  v. 
C  .i:k,  14Juhus.  4<>t;  McKc-nty  r.  (ilatlwiii,  I5Cal.  227;  FcriiiorH  due,  3  Coke, 
7S;  Wfcdon  r.  Ilawes,  10  Conn.  5');  Wimbuali  i'.  Tailboia,  I'low.  54;  .ScaluH  v. 
Scott,  13Cal.  77;  Tickncr  r.  Wialiall,  '.»  Al.i.  305;  liurku  r.  Murphy,  27  Mi»«. 
107;  Mta.1  r.  Comb«,  I'J  N.  J.  E<i.  112;  Hall  r.  il.y.lon,  41  Ala.  242;  Co<jli(lgo 
r.  Mclvin,  42  N.  11.  510;  Johiwoa  r.  Murchiaon,  1  Wiiiat.  2^2;  Hawcs  v. 
Mooucy,  39  Coaa.  37. 


341  PERSONAL  PROPERTY   SUBJECT  TO  EXECUTION.        §137 

the  payment  of  the  debts  of  its  real  owner.  This 
object  cannot,  however,  be  :  ccomphshed  at  law.  The 
aid  of  equity  must  be  sought.  Where  a  debtor  has 
fraudulently  conveyed  his  property,  it  may  be  taken  on 
execution  against  him,  because,  in  favor  of  his  credi- 
tors, he  is  still  considered  as  the  owner  of  the  legal  as 
well  as  of  the  equitable  title.  But  when  he  has  fraud- 
ulently bought  property,  and  liad  the  title  taken  in 
the  name  of  another,  the  circumstances  are  different, 
though  the  object  is  the  same.  If  the  transfer  were 
treated  as  void,  the  title  would  remain  in  the  person  of 
whom  the  purchase  was  made;  and  this  would  be  of  no 
advantaofe  to  the  creditors.  The  transfer  must  there- 
fore  be  treated  as  valid,  and  as  transmitting  the  legal 
title  to  the  person  named  in  the  deed.  This  legal  title 
cannot  be  reached  by  the  levy  of  an  execution  against 
the  debtor,  because  he  has  never  owned  it.  The  credi- 
tors must  therefore  resort  to  equity,^  except  in  a  few 
states,  where  statutes  have  been  enacted  to  enable  them 
to  reach  it  at  law.- 

§  137.  V/hat  Creditors  may  Levy  on  Property 
Fraudulently  Conveyed.  —  To  authorize  a  plaintiff  to 

'  Belforti  V.  Crane,  10  N.  J.  Eq.  205;  8t  Am.  Dec.  155;  Williams  r.  Council, 
4  Jones,  200;  Howe  v.  Bishop,  3  Met.  28;  Dockray  r.  Mason,  48  Me.  178;  Low 
r.  Marco,  53  Me.  45;  HainilUin  ?■.  Cone,  99  Maj<a.  478;  Webster  r.  Folsoni,  58 
Me.  2.30;  Parrin  r.  Tliomimoii,  1  Jones,  57;  Jiiiinjcrsoii  i'.  l)uncan,  3  Jones,  237; 
Tronk  r.  <;reen,  9  Midi.  .358;  Smith  r.  Hiasoii,  4  ileisk.  250;  (larlicld  »•.  llat- 
niak«.r,  15  N.  V.  470,  reJiHirmiiig  Brewster  r.  Power,  10  Paige,  502,  and  over- 
ruling Wait  r.  Day,  4  Denio,  439;  Worth  r.  York,  13  Ireil.  200;  Page  r. 
(jOTMlman,  8  Ire<l.  Ivj.  10;  I>aviH  r.  McKiiiiiey,  5  Ala.  719;  dray  c.  F'arris,  7 
Yerg.  155;  Dewey  r.  Long,  25  Vt.  504;  Ciarret  r.  Khanie,  9  Kich.  407;  (J7  Am. 
Doc.  657. 

>Tcvia  r.  Doe,  3  Iiiil.  129;  Pennington  f.  Clifton,  11  Iml.  102;  (lark  r. 
Ch*mljerlain,  13  Allen,  257;  Dunnica  r.  Coy,  24  Mo.  107;  09  Am.  Dee.  420; 
Rankin  r.  Harper,  23  .Mo.  579;  E<My  r.  Haldwin,  23  Mo.  588;  Thomaa  r.  Walker, 
G  Humph.  93;  Cecil  liank  r.  Snively,  23  M.l.  2.'):t;  Kiminel  v.  McRight,  2  Pa. 
bt.  38;  Howo  r.  Wayuumu,  12  Mo.  109;  49  Am.  Dec.  120. 


1136       PERSONAL   rUOrEUTY   SUlUEin'  TO   KXKl^UTION.  n4J 

seize  property  Nvhiih  lias  Ihtii  traiisfirrcd  with  ji  view 
1)1' ili'lVauiliiii;  ov  (li'layiii^^  ciH'ditDrs,  it  is  not  nrci^ssary 
tor  him  to  show  that  \\\o  transtcr  was  iiiade  to  av«ti(l 
the  pavinent  «>t'  liis  pait iiiilar  drht.  ll"  an  intent  ex- 
isted to  driVaud  uny  sin^dc  ero(htor,  the  transfer  is  \n'u\ 
as  a<j;ainst  all  i-reditors.  A  transfer  made  lor  the  pur- 
pose of  hinderiiiij:,  delayinLT.  »»r  dcfraudinuj  existin;j:  cird- 
iti)rs  is  void  as  against  subsetpit-nt  trrditors.'  1(  would 
bocm  that  the  only  persons  entitled  to  treat  a  convey- 
ance as  fraudulent  and  void  sln)uld  he  those  afrainst 
whom  it  miLrht  iiave  oi)erate(l  as  a  fraud  at  the  time 
it  was  made,  or  whom  the  LXrantor  at  that  time  had 
a  desii^n  to  defraud.  It  seems,  however,  to  be  set- 
tled by  the  decided  preponderance  of  the  authorities 
that  a  conveyance  made  with  the  intent  to  defraud 
creditors  may  be  disreji^arded  and  treated  as  V(jid  by 
subse(pient  as  wtll  as  In'  antecedent  creditors."  This 
rule  must,  we  think,  be  qualitieil  so  as  to  exclude  from 
its  protection  all  those  subsequent  creditors  whose 
debts  were  contracted  with  notice  of  the  precedent 
transfer,  and  whom  it  therefore  could  by  no  possibil- 
ity defraud.^  Fraudulent  conveyances  may  be  divided 
into  two  classes:    1.    Those   made  with    intent  to   de- 

>  Wyman  r.  Brown,  50  Me.  Ui);  Clark  r.  French,  S.i  Me.  'AM;  3!)  Am.  Dec. 
C18;  Ikirliiig  v.  Bi-tliojip,  '2'J  Beav.  417;  Vertner  r.  Iluiiiphrey.'i,  14  Sniedca  &.  M. 
I.TIJ;  Hey  r.  Ni.swanger,  1  McCord  Ch.  r>18;  Cari>eiiter  v.  Rf>e,  10  N.  Y.  '227; 
MaiMen  r.  Day,  1  Ikiil.  3.37;  Pariah  r.  Miiri-hrce,  V.i  How.  V2;  Beacli  v.  White, 
Walk.  Ch.  4'Jo;  llur.lt  r.  Courtenay,  4  Met.  (Ky.)  KU);  Lowry  r.  Fiiilier,  2 
Biuih,  70;  92  Am.  Dec.  7^;  Ridgeway  r.  Underwoo.l,  4  Wa-,h.  C.  C.  129;  D.iyle 
r.  SloejKJr,  1  Dana,  CtM. 

»  Hutchiawm  r.  Kelly,  1  Rob.  (Va.)  123;  .39  Am.  Dec.  2.j0;  Nicholiia  i-.  Ward, 
1  I{ca<l,  323;  73  Am.  Dec.  177.  But  in  Maine,  on  the  other  hand,  a  creditor 
cannot  treat  his  debtor's  conveyance  as  void  unless  every  part  of  tho  debt  on 
which  the  execution  issued  accrued  prior  Ut  the  making  of  such  conveyance. 
Usher  r.  Hazeltine.  5  Greenl.  471;  17  Am.  Dec.  253;  Milkr  v.  Miller,  23  Me. 
22;  39  Am.  Dec.  597. 

*  I>:hml»erg  r.  Bil>enttciu,  51  Tex.  4.'>7;  I^ewis  r.  Cattleman,  27  Tex.  407; 
Monroe  r.  bmiUi,  79  I'a.  St.  459;  Suyder  v.  Christ,  39  I'a.  St.  499. 


M3  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     §  13Ta 

fraud  creditors;  and  2.  Those  made  without  any  evil 
intent,  but  deemed  fraudulent  because  their  operation 
ma\-  result  in  withdrawing  property  from  the  reach  of 
creditors.  Of  tliis  latter  class  are  voluntary  convey- 
ances made  under  the  impulse  of  friendship  or  afiection, 
and  without  any  design  to  injure  any  one.  The  law 
deals  more  leniently  with  them,  and  does  not  permit 
them  to  be  avoided  by  persons  upon  whom  they  could 
inliict  no  injury.  A  voluntary  conveyance  made  bona 
fide  is  valid  against  subsequent  creditors.  They  cannot 
complain  because  their  debtor,  prior  to  the  debt,  chose 
to  give  his  pn^perty  away.  If  the  grantor  was  free 
from  debts  when  his  conveyance  was  made,  but  it  can 
be  shown  tliat  he  intended  to  become  indebted  to  an- 
other, and  defraud  him  by  means  of  such  convej'ance, 
then  it  is  void  as  against  creditors.^ 

§  137  a.  Who  are  Creditors  in  Favor  of  Whom 
a  Transfer  may  be  Held  Fraudulent.  —  The  term 
"creditors"  as  em[)loyed  in  tlie  statutes  and  decisions 
concerning  fraudulent  and  voluntary  conveyances  is 
not  used  in  any  narrow  or  technical  signification,  but 
includes  all  persons  whose  interests  might  be  defrauded 
by  the  transfer.  Wherever  there  exists  a  right  or 
obligation  f.r  tlie  invasion  or  disregard  of  wliicli  a 
judguKJut  may  lio  entered,  a  transfer  made  with  tlie 
view  of  rendering  such  judgment  ineifectual  is  doubt- 
less  fraudulent,    and    therefore   void    as   against    the 

*  Littleton  r.  Littleton,  1  Dev.  &  B.  3'J7;  Ri<lgcway  ?-.  Undcrwoo.l.  4 
Wa«h.  C.  ('.  I'Jtt;  Stileman  v.  AHh.lown,  2  Atk.  481;  Barling  r.  }\i>*h«\>\<,  29 
Boav.  417;  How.-  v.  Wanl,  4  Me.  HI.");  IJlack  r.  Noasc,  'M  Pa.  St.  4.TI;  (Jrahani 
r.  O'Kcefc,  It;  Iri«li  Cli.  I;  T.irbac-li  r.  Marbury,  2  Vern.  509;  Ntw  Haven  St. 
Co.  r.  Van.lerlnlt,  IG  Conn.  420;  Cook  r.  .lohnMoii,  1  Ik-jwl.  i)!;  72  Ani.  I>oc. 
881;  National  lUnk  r.  Spragiie.  20  N.  .1.  En.  13;  Murphy  r.  Abraliani,  i:>  Irish 
Efj.,  N.  S.,  .171;  Miller  »'.  Wilson,  15  Ohio,  108;  Lyman  v.  Cc9»for.l,  15  L)wa, 
229;  BoKar.l  r.  r;ar(lley,  4  Sinciles  &  M.  302;  Willianm  r.  Banka,  11  MJ.  198. 


§i:>:.%      rERSOX.VL  TROPERTY   SU1UE(T  TO  EXECUTION.  344 

intorost  siuiLjht  to  hr  tk'tVaiultHl.  Tlius  il"  one  has 
coininitttHl  any  tort  for  which  he  may  ho  answcrahlo  in 
ihima'j^os.  tho  poi-soii  ontitli'tl  t<>  rcrovor  such  chnuagca 
is  ft  I'lvchtor,  and  «s  such,  in  proceeding  to  ohUiin  sat- 
isfaction oi'  a  jud;j;nu'nt  for  such  daniaijfes,  mny  treat 
lus  void  any  transfer  made  with  a  view  of  liiiiderinj^  or 
delay iii'j,-  liiin  in  liis  atteiiipt,  to  realize  such  satisfaction.* 
Hence  a  transfer  to  prevc-iit  the  satisfaction  of  a  judg- 
ment which  mij^ht  l)e  recovered  against  the  grantor  for 
ft  slancU^r  uttered  hy  him."  or  for  seduction  or  breach  of 
promise  of  marriage,^  or  for  alimony,  or  otlicr  moneys 
to  which  a  wife  is  entitled  IVoni  her  hushand/  may  be 
regarded  as  fraudulent  and  void.  Sometimes  it  lias 
been  held  that  one  having  a  claim  for  a  tort  is  not 
entitled  to  ])rotection  as  a  creditor,  unless  he  has  com- 
menced an  action  for  tlie  damages  occasioned  to  him 
thereby.''  This  question  has  not  been  very  carefully 
considered,  hut,  upon  principle,  there  seems  to  be  no 
reason  for  attaching  any  importance  to  the  pendency 
of  the  action,  except  that  the  known  pendency  of  an 
action  might  render  it  more  probable  that  the  transfer 
was  fraudulent,  and  intended  to  avoid  a  claim  which 

'  Barling  r.  Bishopp,  29  Beav.  417;  Fox  v.  Hills,  1  Conn.  295;  Westmore- 
land f.  Towell,  59  Ga.  250;  Bongard  v.  Bloch,  81  III.  18G;  25  Am.  Rep.  27G; 
Weir  r.  Day,  57  Iowa,  87;  Cooke  v.  Cooke,  43  Md.  522;  Hoffman  r.  Junk, 
51  Wi3.  C1.3;  Harris  v.  Harris,  23  Gratt.  737;  Patrick  v.  Ford,  5  Snccd,  532, 
note. 

»  Walnult  r.  Brown,  1  Ciilm.  .397;  41  Am.  Dec.  190;  Lillard  v.  McGce,  4 
Bibb,  1G5;  Farnsworth  r.  Bell,  5  Sneed,  531. 

»  Lowry  r.  Pmson,  2  liail.  324;  23  Am.  Dec.  140;  Smith  v.  Culbcrtaoii,  9 
Rich.  106;  Hoffman  r.  Junk,  51  Wis.  G13;  Greer  r.  Wright,  G  Gratt.  154;  52 
Am.  Dec.  111. 

♦  Fciglcy  r.  Feiglty,  7  Md.  537;  01  Am.  Dec.  375;  Sanborn  r.  Lang,  41  Md. 
107;  Taylor  r.  Wild,  8  licav.  159;  Draper  r.  Draper,  G8  111.  17;  Cliaae  v.  Chase, 
105  Ma&B.  385;  Bonslough  v.  lionslough,  G8  Pa.  .St.  495;  Livermoro  v.  Boutelle, 
11  Gray,  217;  71  Am.  Dec.  708;  Boils  v.  Boils,  1  Cold.  284. 

*  Hill  r.  Bowman,  35  Mich.  191,  in  which  case  the  opinion  is  upon  this 
■ubjcct  a  mere  dictum. 


&i5  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     §137a 

the  parties  had  reason  to  believe  would  be  prosecuted 
to  judgment.     But  a   plaintiff  is  no  more  a  creditor 
after  commencing  an  action  than  before.     His  cause  of 
complaint,  whatever  it  may  be,  must  exist  anterior  to 
the  commencement  of  his  action,  and  is  of  precisely 
the  same  character  after  such  commencement  as  before. 
If  any  change  takes  place  in  the  cause  of  action,  it  can- 
not be  prior  to  its  merger  in  the  judgment.     Nor  does 
the  mere  pendency  of  the  action  create  any  lien  upon 
any  property.    The  better  opinion,  therefore,  is,  that  one 
having  a  claim  for  a  tort  is  a  creditor  before  the  com- 
mencement of  an  action  thereon  as  well  as  after,  and  as 
such  creditor  is  upon  recovering  judgment  entitled  to 
avoid  a  fraudulent  transfer  antedating  the  commencing 
of  his  action.^     If  a  judgment  is  based  on  a  contract, 
tlie  judgment  creditor's  right  to  be  treated  as  a  creditor 
relates  back  to  the  date  of  the  execution  of  the  original 
contract.     Hence  he  may  treat  as  void  any  fraudulent 
transfer  executed  subsequent  to  the  contract  on  which 
the  judgment   was    based.     The   transfer   cannot   be 
supported   by  showing  that   when   it  was   made  the 
judgment  creditor's  debt  had  not  become  due,"  or  that 
his  claim  was  contingent,  and  it  could  not  then  have 
been    known    that   any  cause   of   action   against  him 
would  ever  result  from  the  contract.     Therefore  if  a 
bond  be  given,  a  fraudulent  transfer  made  subsequently 
but  before  breach  of  its  condition  may  be  avoided  as 
well  as  if  executed  after  such  breach.^     The  same  rule 

»  Conlcr  r.  WilliaiiiH,  40  Iowa,  582;  Shcan  v.  Shay,  42  Iiul.  liln;  13  Am. 
Rep.  30(3. 

'■' IIi.wo  r.  Ward,  4  Me.  lO.'i;  Conk  v.  JolinHon,  12  N.  J.  E(].  .')l;  72  Am. 
Dec.  381. 

»  Thompson  r.  Thompson,  11)  Mu.  244;  30  Am.  Dec.  751;  Stone  v.  Myers, 
9  Minn.  'Mi;  iH'>  Am.  Dec  104;  Carliale  v.  Rich,  8  N.  II.  44;  An.lerbon  v. 
Anderaon,  04  Ala.  403;  33  Am.  Rop.  797;  Sodou  r.  SoJeu,  34  N.  J.  E«i.  115. 


S  138        PERSONAL  TROPRRTY   SUMECT  TO   EXECUTION.  .'MO 

prt^vails  wlu-iv  tlio  liability  of"  the  tVauduKut  i^raiitor  at 
the  ilato  of  tho  ijrant  was  I'untinjjfiMit,'  as  \vhrr(>  lu*  was 
a  surotv,  LTuaranttH'.  fi-  indorstT,  and  it  was  not  knuwii 
tlmt  lie  wouKl  ovrr  he  callrd  iii»(>u  to  |>ay  tlio 
(lol>t.'  Tho  liability  <>('  a  «,n\mtor  uiidrr  liis  covenant 
of  warranty  tlocs  nt)t  diiVrr  in  |)rin<ii>lc  iVoiii  other 
continLr«-'nt  lialtilitii's,  and  a  iVaudultiit  coiivi-yance 
niaile  at  any  time  after  such  covenant  ouu^lit  to  bo 
regarded  as  voiil  as  aiT'iini^t  a  judi^nicnt  thereon,^  It 
debts  exist  whvn  a  fraudulent  conveyance  is  made,  a 
cliani^e  in  their  form,  or  in  the  persons  to  whom  they 
are  due.  is  immaterial.  Subsequent  creditors  from 
whom  means  were  obtained  to  pay  off  the  antecedent 
creditors  are  entitled  to  treat  the  conveyance  as  void.* 

i;  138  What  kinds  of  Property  may  be  taken  from 
Fraudulent  Grantee.—  The  kinds  (»f  i>i(»i»erty  which 
may  bi-  levied  upon  as  that  of  the  fraudulent  j^rantor 
embrace  everything  which  coukl  have  been  subjected 
to  execution  in  his  hands  if  no  conveyance  had  been 
made.  In  other  words,  the  laws  aLjainst  fraudulent 
conveyances  are  applicable  to  every  species  of  property 
which  the  orrantor's  creditors  could  have  lawfully  had 
appropriated  to  the  payment  of  their  demands.''  Ihit  it 
is  evident  that  creditors  i-aniiot  be  drlVaudcd,  hindered, 

>  Bil>b  r.  Freeman,  59  Ala.  C12;  PoHt  r.  Stigcr,  29  N.  J.  Eci-  554. 

'  Jackuo!*  r.  Sowanl,  5  Cow.  CT;  CraiiuT  r.  Utfonl,  17  N.  J.  E*].  3G7;  90 
Am.  Dec.  594;  McLaughlin  r.  Bank,  7  How.  220;  liay  r.  Cook,  31  111.  .3.30; 
OilMon  r.  Love,  4  Fla.  217;  Crane  v.  Sickles,  15  Vt.  252;  Curd  r.  Milkra  E.x'r, 
7  Gratt.  185. 

»  RhfHle?  r.  Crecn,  30  Ind.  7;  Oannard  r.  Esl.ira,  20  Ala.  741;  ronlm, 
Bridgfonl  r.  Ri.ldell.  5.5  111.  201. 

♦  Paulk  r.  Cooke,  .39  Conn.  500;  liarliydt  r.  Perry,  .57  Iowa,  410;  Mills  v. 
Morriis  Hoff.  <'h.  419;  .Savage  r.  Muq.liy,  34  N.  Y.  508;  90  Am.  Dec.  733; 
McElweo  r.  Sutton.  2  Riil.  128. 

*  Bump  on  Fraudulent  Convoyances,  203,  2G4;  Bauk  r.  Ballard,  12  Rich. 
259;  GarriBoa  r.  Mooaghan,  33  Pa.  .St.  232. 


347  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  139 

nor  delayed  by  the  transfer  of  property  which,  neither 
at  law  nor  in  equity,  can  be  made  to  contribute  to  the 
satisfaction  of  their  debts.^  Hence  it  is  almost  uni- 
versally conceded  that  property  which  is  by  statute 
exempt  from  execution  cannot  be  reao^icd  by  creditors 
on  the  ground  that  it  has  been  fraudulently  trans- 
ferred." The  transfer  is  eliuctual  between  the  parties, 
and  neither  will  be  permitted  to  evade  its  force  by 
showiny^  that  it  was  without  consideration  and  intended 
to  defraud  creditors.  If  the  fraudulent  grantee  of  a 
homestead  should  reconvey  the  property  to  the  grantor, 
it  must  be  regarded  as  a  new  acquisition,  and  subject 
to  execution  to  the  same  extent  as  if  the  first  convey- 
ance had  not  l^ecn  intended  to  defraud  creditors.^ 

^  139.  Origin  of  the  Law  against  Fraudulent  Trans- 
fers.—  Whether  the  result  of  fraudulent  transfers,  as 
stated  in  the  three  preceding  sections,  was  fully  recog- 
nized at  common  law,  may,  perhaps,  admit  of  some 
doubt.  At  all  events.  Parliament  saw  j^ropcr  not  to 
rest  entirely  upon  common-law  rules,  but  to  enact  sev- 
eral statutes,^  all  designed  to  prevent  persons  from 
taking  advantage  of  their  own  frauds.  It  is  claimed 
that  these  statutes  were  but  declaratory  of  the  connnon 
law,  and  tluit  every  wrong  to  which  they  have  been 
applied  was  susceptible  of  equally  successful  treatment 

>  Wiiicl»riniicr  v.  Wt;i*iiigfr,  3  T.  B.  Mon.  .^3;  Doarman  v.  Doarni;in,  4  Ala. 
521;  PlauttTf.'  B-ink  v.  Hcn-lersoii,  4  Iluiiiiih.  75. 

»  B^m.l  r.  Seymour,  1  ChanJ.  40;  Smith  v.  Allen.  39  MIms.  409;  Lcgro  r. 
Loril,  10  .Mc.  Kil;  Lisliy  r.  Perry,  ti  Hush,  itlii;  Vaiighau  r.  Thompson,  17  111. 
78;  Piko  r.  Milc^,  'n  Wis.  1G4;  99  Am.  Dee.  148;  Woo.1  r.  Cliamhers,  20  Tex. 
247;  70  Am.  Dec.  382;  F<wter  r.  .McGregor,  11  Vt.  59.');  34  Am.  Dec.  713;  ("ox 
r.  Shropwhire,  25  Tex.  113;  B.ati  v.  Smitli,  2  M.-won.  2:)2;  jxU,  §218;  Cruni- 
men  r.  Bcnnct,  08  N.  C.  494;  Dortch  v.  Itenton,  98  N.  C.  190. 

»  Butler  r   NeUon,  72  Iowa,  732. 

*  SUt.  50  E-lw.  III.,  c.  0;  3  Ucn.  VII.,  c.  4;  13  Eliz.,  c.  5;  27  Eliz.,  c.  4. 


§  IS)        PKlv^ONAL  rUOPKRTY   SUWECT  TO  EXECrTION.  348 

without  tlu'ir  akl.'  At  all  evonts,  it  sconis  ii..t  to  ho 
lurossiiry,  at  tlio  present  ihiy,  to  show  that  an  alh';4rd 
tVaiuhikMit  ilevii'o  fulls  within  tho  iMt»\  isi..ns  ..f  either 
of  these  stiitutes;  aiul  Nve  may,  tlurefore,  assume  that 
everv  transfer,  pledi^e,  or  lieu  madi'  with  intent  to 
ilelay,  hiuuer,  ov  tUrrainl  erinlitors  is,  as  ui^ainst  such 
ereiiitors,  void,  wht  tlur  it  assumes  some  one  ot  lln; 
forms  desijj|;nated  hy  these  statutes,  or  takes  some  shape 
liithertii  unknown  and  undeserihed,"  It  heeonies, 
therefore,  of  the  highest  importance  that  persona 
seokinj^  to  harvest  the  fruits  of  their  judgments  should 
be  enabled  to  determine  wheth»>r  property,  formerly 
bclonjjfinji  to  the  defendant,  but  transferred  by  him  to 
another,  may  still  be  UUcen  and  approi)riated  to  the  pay- 
ment of  his  debts,  on  the  ground  that  the  transfer  was 
void  as  a<j:ainst  creditors.  The  subject  of  fraudulent 
liens  and  transfers  is  of  such  importance,  and  has  given 
rise  to  so  many  reported  adjudications,  that  it  cannot 
be  treated  with  desirable  fullness  within  the  limits  of 
this  work.  And  fortunately,  such  treatment  is  not 
now  necessary,  because  of  the  research  and  ability 
already  devoted  to  it  in  the  notes  to  Twyne's  Case  in 
1  Smith's  Li-ading  Cases;  in  the  notes  to  Sexton  v. 
\Vheuton,  Salmon   v.   ]3ennett,  Thomas  v.  Jenks,  and 

>  Caaogan  r.  Kennett,  Cowp.  432;  Clark  v.  Douglaa,  O'J  V:i.  St.  408;  liartoii 
r.  Vaiiheythuaen,  11  Hare,  132;  Clements  v.  Monro,  G  Wall.  312;  Peck  v. 
Land,  2  Kelly,  10;  4G  Am.  Dec.  308;  Huilnal  r.  Wilder,  4  McCord,  2i»4;  17 
Am.  LHjc.  44-t. 

'  "Whenever  tlie  sUtute  ia  ineffective,  either  through  a  change  of  cuatom 
or  the  intrixluction  of  a  new  kiml  of  property,  or  the  concocting  of  some  new 
device,  there  the  common  law  intervenes  with  itH  pure  and  elevated  principles 
of  morality  and  justice,  and  enforce:*  the  dictates  of  comnton  honesty  and  com- 
mon seniic.  In  otlier  word;*,  the  comni<in  liw  HUpplcments  the  statute,  tt»  the 
ea»l  that  ja«ticc  may  Ikj  «lone  and  every  species  of  fraiid  suppressed."  Bump 
on  Fraudulent  (.'onveyaucea,  51);  IJlacknian  r.  Wheaton,  13  .Minn.  320;  Fox  v. 
UiWa,  I  Conn.  295;  Sut«  <•.  Fife,  2  Bail.  337;  Liliard  v.  McGec,  4  Bibb,  105; 
Taylor  v.  Ueriot,  4  Duaaus.  227. 


349  PERSONAL  PROPERTY  SUB-JECT  TO  EXECUTION.        §  140 

Grovcr  V.  Wakeman,  1  American  Leading  Cases;  in 
Kerr  on  Fraud  and  Mistake,  with  American  notes  by 
!Mr.  O.  F.  Bump;  and  finally,  in  a  more  elaborate  form, 
in  Mr.  Bump's  excellent  treatise  on  fraudulent  con- 
veyances. The  subject  is,  however,  so  intimately  con- 
nected with  the  law  of  executions,  that  w^e  must  give 
it  some  further  consideration.  We  shall  endeavor  to 
show,  in  the  briefest  manner  possible, —  1.  Who  are 
the  persons  from  whose  hands  the  property  cannot  be 
taken  under  execution  against  the  fraudulent  vendor; 
2.  The  most  important  classes  of  cases  in  which  trans- 
actions are  regarded  as  fraudulent,  prima  facie  or  per 
se,  owing  to  tlie  nature  of  the  transfer,  and  independent 
of  any  evidence  showing  the  actual  intent;  and  3. 
When  and  where  the  retention  of  possession  by  the 
vendor  is  conclusive  proof  of  fraud. 

§  140.  Persons  whose  Rights  cannot  be  Affected  by 
Showing  that  Transfer  was  Fraudulent.  —  The  gen- 
eral statement  that  transfers  or  liens  made  to  hinder, 
delay,  or  defraud  creditors  are  void  against  the  persons 
sought  to  be  so  prejudiced  or  defrauded,  must  always 
be  understood  with  tliis  qualification,  that  the  rule  is 
not  to  be  applied  against  persons  who  have  obtained 
interests  in  tlie  [)roperty  in  good  faith,  and  for  a  valu- 
able consideration.*  The  law  does  not  interpose  in 
favor  of  creditors  as  against  persons  wlio  are  innocent 
of  all  participation  in  the  fraud;  who  have  not  assisted 
it  by  act,  design,  or  neglect;  who  have  had  neither 
notice  nor  knowledge  of  its  existence;  and  have  parted 
with  valuable   consideration    upon  their   faith   in   the 

•  A  purcliaHor  from  a  fraudiik-iit  veiuloc,  in  good  faitli  ami  for  value,  will 
hold  the  iiropurty  against  a  croditnr  wlio  had  isauud  an  execution,  hut  liad  not 
levied  it  when  such  purcbaae  waa  uiadu.  Yoaug  r.  Lathrop,  I'-J  Am.  llcp.  003; 
67  N.  C.  63. 


§110        PERSONAL   rUOri:UTY   sriUECT  TO  1L\.ECUTI0N.  860 

traii^ifrr.  wliiclu  in  tho  t<iul.  iiiiiy  l)o  shown  to  liavo  boon 
fniiuluKMit.      It    is   not   suUiriont    that   tlic   prison   in 
>vh<^so  hands  tho  proiHTtv  is  found  can  slmw  that  lie 
has  aonuin-il  it    tor  a  vahiahU*  coiisiihiation,  or  that  ho 
has  tUMiuin-d    it    in   p)od    faith.      He  must    surrondor 
tho  ]iroju'rt y  ti>  tho  civditors,  uido>s  ho  can  show  tliat 
his  aiMjuisition   is  sustaiiu'd  l)oth  hy  i::^ood  faith  and  hy 
ft  vahial»li'  »-i)nsi(K'ration.      "An   inquiry  into  tho  p^ood 
faitli  oi'  tho  i^rantoc  is  only  nooossary  when  there  is  a 
vahiahh'  oonsiiloration   for  tho  transfer.     Tho  more  ac- 
ceptance of  a  transfer,  without  a  valuable  consideration, 
is  of  itself  suthcient  evidence  of  a  participation  in  the 
debtor's   fraudulent   intent."'      If  no  valuable   consid- 
eration existed,  the  transaction   is  per  sc  fraudulent  as 
a^-ainst  creditors  whom  it  would  hinder  or  delay  if  per- 
mitted to  stand.      Xo   evidence  of  the   intent   of  the 
parties  can  be  received.     The  inference  of  tho  law  is 
irresistible.     But  the  consideration  paid,  though  valu- 
able, may  have  been  inadequate.     The  inadequacy  of 
the  consideration  does  not  necessarily  avoid  the  trans- 
fer.    It  is,  however,  a  material  fact,  to  be  considered 
by  the  jury  as  a  badge  of  fraud;  and  may  operate  to 
avoid  the  transfer  when,  either  alone  or  in  connection 
\s-ith  other  facts,  it  produces  the  conviction  that  the 
transfer  was  not  made  in  good  faith." 

»  Bump  on  Frau<luknt  Conveyances,  229;  Taylor  r.  .Jono«,  2  Atk.  (MK); 
.Strong  r.  Strong,  IS  Bcav.  408;  Cloltlamith  r.  Russell,  .')  Do  (Jex,  M.  &  CJ.  547; 
Belt  r.  Ragnet,  27  Tex.  471;  Newman  r.  C'onlell,  4.3  Barb.  448;  Pock  v.  Car- 
niichael,  9  Yerg.  32.^);  (Jaml.le  r.  Johnson,  9  Mo.  005;  Swartz  r.  Hazlett,  8  Cal. 
118;  Wwe  r.  M<K.re.  31  CJa.  148;  Loo  r.  Eigg.  .37  Cal.  32S;  99  Am.  Doc.  271; 
Hick»  r.  Stouc,  13  Minn.  4:J4;  Clark  r.  Chamberlain,  13  Alloa,  2.>7. 

»  Monell  r.  Schcrriek,  rA  111.  2(59;  Kane  r.  Wcighley,  22  Pa.  St.  179; 
Trimble  r.  Pvatcliff,  9  B.  Mon.  511;  Robinson  r.  RoUnls,  15  Mo.  459;  Leer. 
}lunUT,  I  Paig.-,  519;  Barrow  r.  Baiky,  5  Fla.  9;  Seamans  r.  White,  8  Ala. 
65<;;  KuykeniUU  .-.  McI)<.naM,  15  Mo.  410;  .'>7  Am.  Dec.  212;  ArnoM  r.  Bell, 
I  Hayw.  (N.  C.)  390;  Bryant  r.  Keltou,  1  Tox.  415;  Peuhall  v.  Elwin,  1  Smale 
&  G.  258. 


351  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTIOK        §141 

§  141.  Good  Faith  of  the  Holder  of  Property  Trans- 
ferred in  Fraud.  —  The  mere  payment  of  a  valuable 
and  sufficient  consideration  is  by  no  means  conclusive 
in  favor  of  the  holder  of  property  which  has  been 
fraudulently  transferred.  On  the  contrary,  if  it  be 
shown  that  the  holder  did  not  acquire  the  property  in 
good  faith,  it  is  immaterial  whether  he  paid  full  value 
or  no  value.^  That  the  transaction  was  to  hinder, 
delay,  or  defraud  creditors  i^  sufficient  to  annul  it, 
unless  the  person  into  whose  hands  the  property  has 
come  is  guiltless  of  all  complicity  in  the  fraudulent 
intent,  and  is  ignorant  of  its  existence.  The  acquisi- 
tion of  the  property,  though  for  full  value,  is  not  in 
good  faith  when  the  purchaser  participated  in  the 
grantor's  fraudulent  intent,  nor  when,  without  partici- 
pating in  such  intent,  he  had  notice  of  its  existence. 
The  ca.ses  in  which  actual  knowledge  can  be  proved 
are  not  likely  to  be  frequent ;  for  people  engaged  in  the 
prosecution  of  fraudulent  schemes  seek  to  conceal  all 
direct  evidences  of  their  purposes  and  intentions,  and 
true  relations  to  the  business  in  hand.  But  notice 
may  be  inferred  where  actual  knowledge  cannot  be 
established.  The  purchase  will  be  regarded  as  mala 
fide  where,  at  any  time  prior  to  the  payment  of  the 
purchase-money,"  the    purchaser   had    "knowledge  of 

'  Woracley  v.  De  Mattos,  1  Burr.  474;  Bott  r.  Smith,  21  Bcav.  51 G;  Har- 
maa  v.  Ricliards,  10  Hare,  81;  Tlioiniiaon  v.  Webster,  4  Drew.  G28;  7  Jur., 
N.  S.,  531 ;  Lloyd  r.  Attwood,  '.i  De  (Jcx  &  J.  G55;  Eraser  v.  Thomiison,  4  De  Gex 
t  J.  G.'i9;  Carlett  r.  Ratlcliffe,  14  Moore  P.  C.  C.  1*21;  Holmes  r.  Peiiiiuy,  .1  Kay 
k  J.  99;  Harrison  >:  Kramer,  3  Clarke,  543;  Wood  v.  Cliambers,  20  Tex.  247; 
70  Am.  Dec.  3*;2;  SUiiii  <•.  Hermann,  23  Wis.  132;  I'uUiam  r.  Newlierry,  41 
Ala.  WW;  Harri.Hon  >:  Jat^\\c^s,  29  Ind.  20S;  Sayre  r.  Fredericks,  IG  N.  J.  Ktj. 
205;  llfjlnnson  r.  Holt,  .39  N.  H.  557;  75  Am.  Dec.  2.13;  Zerl)e  r.  Miller,  16 
Pa.  St.  488;  P.;ttUH  v.  Smith,  4  Rich.  Eq.  197;  Brown  r.  Force,  7  B.  Moa. 
357;  4G  Am.  Dec.  519. 

»  Parkiiuum  r.  Hanaa,  7  Blackf.  4<J0;  Story  r-.  Windsor,  2  Atk.  G30;  llord- 
iugbam  v.  NicbolLi,  3  Atk.  304. 


§  Ml        PERSONAL  PROPERTY  SUBJECr  TO  EXKCUTION.  352 

facts  sufHi'unt  to  oxoito  tlio  suapicions  of  a  pnidont 
man.  ami  put  liiiii  on  iiu|ulrv,'  or  to  loail  a  piTsoii  of 
(»rdniarv  poivoption  to  infer  tVaiid,"-  It  is  .siitricicnt 
to  cliar^o  till"  puri'liasrr  \\  itii  nnticr.  (hat  liy  ordinary 
lUliuftMUH*  he  niii^ht  have  known,  or  tliat  he  had  rea- 
son to  know  or  helieve,  what  was  the  intent  of  tlio 
transfer.^  Tlie  notiee  to  tlie  veiuh^o  whieli  renders 
liis  pureliase  nial({  fide  must  he  in  i-ei^ard  tn  (he  intent 
to  hinder,  delay,  or  defraud.  His  knowledj^e  of  tlio 
fnianeial  enil>arrassnient  or  insolveney  of  the  vendor  is 
nut  sulHeient;*  tor  every  man,  re;^ardloss  of  his  sol- 
vency, has  the  rii^ht  to  sell  and  transfer  his  property 
at  any  time  before  it  is  made  sul)jeet  to  writs  issued 
hy  his  cretlitors.  As  has  already  been  intimated,  the 
claim  to  protection  as  a  bond  Jhlc  purchaser  can  only 
be  supported  by  showinijj  that  a  conveyance  of  the  title 
M-as  received  and  payment  mad(>  in  full  j>rior  to  re- 
ceiving notice  of  the  equity  against  wliieh  the  claim  is 
made.  It  is  not  sufficient  that  the  money  was  secured 
to  be  paid  prior  to  receiving  such  notice,''  though  there 

»  Green  r.  Tantum,  19  N.  J.  Eq.  105;  21  N.  J.  Eq.  3CA;  Atwooil  r.  Imp- 
son,  20  N.  J.  Eq.  150;  Jackson  r.  Mather,  7  Cow.  301;  Mills  v.  Ilowoth,  19 
Tex.  257;  70  An».  Dec.  331;  Smitli  v.  Henry,  2  Bail.  118. 

'  Wright  V.  Bran.lis,  1  In.l.  330. 

*  Huiiii>hrif8  r.  P'reenian,  22  Tex.  45;  Fanners' liank  r.  Douglass,  11  Smedes 

6  M.  4i;9;  Foster  r.  Grigsby,  1  Bu.sh,  80;  fiarahy  r.  Bayley,  25  Tex.  Sup. 
294.  But  there  are  authorities  which  seem  to  require  tliat  tlio  vemleo  should 
participate  in  the  iiit<'nt,  or  his  purchase  will  ho  deemed  in  good  faith.  Seavy 
r.  Dcarlx>ru,  19  X.  H.  .351;  Brown  v.  Force,  7  B.  Mon.  357;  40  Am.  Dec.  519; 
Sterling  r.  Ripley.  3  Chaud.  106. 

*  AtwrKxI  r.  Iinp«*ou,  20  N.  J.  Eq.  150;  Siflson  v.  Roath,  30  Conn.  15;  Bun- 
yard  r.  S«^brook,  1  Fo.st.  A  F.  .321;  Hughes  v.  Monty,  24  lowa,  499;  Locschigk 
r.  Bridge.  42  N.  Y.  421;  Merchant'  N.  B.  »-.  Northrop.  22  N.  J.  Va\.  58;  BcaU 
r.  Guernsey,  8  .J«.hn.«».  440;  5  Am.  Dec.  348;  Lyon  r.  Piood,  12  Vt.  2.3.3.  Contra, 
R«inhcimcr  r.  Hemingway,  .35  Pa.  St.  4.'12. 

*  Dugan  r.  Vattier.  3  Blackf.  245;  25  Am.  Dec.  105;  Nantz  r.  McPhernon, 

7  T.  B.  Mon.  597;  18  Am.  Dec.  210;  (Jallion  r.  McCa»lin,  1  Blackf.  91;  12 
Am.  Dec  208;  Jewett  r.  Palmer,  7  John.-*.  Ch.  05;  11  Am.  Dee.  401;  .Jaeksoa 


353  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  142 

seems  to  be  a  growing  tendcnc}^  to  protect  a  purchaser 
irro  tanto,  who  in  good  faith  paid  a  portion  of  the  pur- 
chase-money before  receiving  notice/  With  respect 
to  what  will  deprive  a  purchaser  of  the  right  to  be 
protected  as  a  purchaser  without  notice,  the  general 
rule  is,  that  he  is  chargeable  not  only  with  the  facts  of 
which  he  has  knowledge,  but  also  with  notice  of  such 
other  facts  as  would  have  been  disclosed  to  him  had 
he  acted  in  a  prudent  and  reasonable  manner.  "If  he 
has  knowlcdire  of  such  facts  as  would  lead  any  honest 
man  using  ordinary  caution  to  make  further  inquiries, 
and  does  not  make,  but  on  the  contrary  avoids  mak- 
ing, such  obvious  inquiries,  he  must  be  taken  to  have 
notice  of  these  facts,  which,  if  he  had  used  such  ordi- 
nary- diligence,  he  would  readily  have  ascertained."^ 
"Whatever  will  put  a  purchaser  upon  inquiry  and  lead 
to  knowledge  is  notice.  He  is  bound  to  make  inquiries 
where  there  is  anything  that  would  load  a  prudent 
man  to  make  it,  and  he  is  therefore  presumed  to  have 
known  all  that  inquiry  would  have  revealed  to  him."^ 

§142.  Voluntary  Conveyances.  —  Transfers  which 
are  regarded  as  fraudulent  per  se,  or  prima  facie,  will  be 
considered  in  the  following  order:  1.  Absolute  con- 
veyances; 2.  Mortgages  and  trust  deeds,  pur[)orting 
to  be  made  to  secure  existing  indebtedness;  3.  Assign- 
ments for  the  lionefit  of  creditors.     Of  conveyances,  we 

V.  McChesney,  7  Cow.  .SCO;  17  Am.  Dec.  Ml;  Union  Canal  Co.  v.  Young.  1 
Whart.  110;  .TO  Am.  Dec.  L'l'J;  lilanclianl  v.  Tyler,  I'J  Mich.  3:;9;  8(i  Am.  Dec. 
67;  Lewis  >•.  Phillips,  17  In-l.  108;  79  Am.  Dec.  457. 

'  Kcssler'a  Appeal,  75  Pa.  St.  483;  Kittcridgc  r.  Chapman,  30  Iowa.  348; 
Hardin  r.  Harrington,  11  Bush,  .307;  Ilaughwout  r.  Murphy, '21  N.  J.  E(i. 
118;  Dighy  v.  Jones,  07  Mo.  104. 

»C'onvcriMJ  r.  Blumrich.  14  Mich.  109;  90  Am.  Dec.  230. 

•Gilwon  r.  Winnlow,  40  Pa.  St.  380;  84  Am.  Dec.  C52;  Litchficld'a  Appeal, 
28  Conn.  127;  73  Am.  Dec.  002;  Luinhanl  v.  Ahhey,  73  111.  178;  Morri.'ion  r. 
Kelly,  22  111.  010;  74  Am.  Dec.  109;  Chicago  K.  U.  v.  KoQuedy,  70  111.  302. 
Vou  I. -a 


§ii-*      rKRsoxAL  rRorFiiTV  snuE(T  TO  rxr.rrTTOX.       sw 

sliall  first  treat  of  those  wliu'li  are  voluntary.  Wlicro 
it  i-aii  l)o  simwn  that  tlio  intent  with  which  any  convey- 
ance was  nuule  was  to  liinder,  ch'hiy,  or  drlVaucl  ereiU- 
toi*s,  there  can  he  no  «ioul)t  tliat  it  is  void  as  nij^ainst 
them.  With  respect  to  \«'hiiit;iiy  conN  t  yanccs,  the  in- 
tent with  which  tliey  were  made  may  he  infcrreil  from 
the  situation  of  tlie  grantor  at  the  time.  "Tlio  law 
presumes  that  every  man  intends  the  necessary  conse- 
quences of  his  act,  and  it"  the  act  necessarily  delays, 
himlcrs,  or  defrauds  liis  creditors,  then  the  law  pre- 
sumes that  it  is  done  willi  fraudulent  intent."*  On  the 
other  hand,  it  is  e(|ually  w«ll  settled  that  every  man 
is  entitled  to  dispose  of  liis  own  property  as  he  thinks 
best,  }>rovided  that  neither  the  intent  nor  the  result  of 
the  act  of  disposition  is  to  hinder,  delay,  or  defraud  his 
creditors.  A  man  free  from  debt  may  make  a  valid 
gift  of  his  property, — one  which  subsequent  creditors 
cannot  successfully  assail  otherwise  than  by  showing 
that  the  gift  was  made  willi  a  view  of  becoming  in- 
debted,  and  of   di^frauding  them."      Nor    is  the  mere 

'  Bumj)  on  Fraudulent  Conveyances,  p.  '2.S2,  citing  Potter  r.  McDowell,  .31 
Mo.  G'2;  O'Coiiuor  v.  licmaril,  '2  .Jones,  0.">4;  Freeman  r.  Vo[n;  L.  K.  .')  Cli.  3j8; 
39  L.  J.  Ch.  GS9;  Norton  v.  Norton,  5  Cusb.  o-2i;  Smith  v.  Clierrill,  L.  R.  4 
E.].  390;  ,30  L.  J.  Ch.  738;  Frencii  r.  French,  G  Do  (iex,  M.  k  G.  95;  25  L.  J. 
Ch.  Gl'2;  Stro.ig  r.  Strong,  IS  lieav.  408;  Freeman  v.  Burnliam,  30  Conn.  409; 
Corlett  r.  Ratcliffe,  14  Moore  P.  C.  C.  I'JI ;  Ree.se  River  M.  Co.  r.  Atwell,  L.  R. 
7   E<i.   347;   Van  Wyck   r.   Sewanl,    18  Wend.   .375;    Thompson    r.    Webster, 

7  Jur.,  N.  .S.,  531. 

'  Sexton  f.  Whcaton,  8  Wheat.  229;  Russel  r.  Hajnniond,  1  Atk.  14; 
Walker  r.  Burrows,  1  Atk  94;  Townshend  v.  Windham,  2  Ves.  1;  Stephens 
r.  Olive,  2  Brown  Ch.  91;  Lush  r.  Williamson,  5  Ves.  384;  (Uaister  v.  Hewer, 

8  Ves.  199;  Battcrslice  i'.  Farrington,  1  Swanst.  100;  Faringer  r.  Ramsay,  4 
Md.  Ch.  3.3;  Bonny  r.  Griffith,  1  Ifaye.s,  115;  Ikiiton  r.  .Jonea,  8  Conn.  180; 
Sweeney  r.Damron,  47  111.  Vri);  Winehrinncr  r.Weisinger,  3T.  B.  Mon.  .32;  Baker 
r.  Welch,  4  Mo.  484;  Charlton  r.  <;ardner,  11  Leigh,  281;  Ihi^k.ll  r.  Bakew.ll, 
10  B.  Mon.  2IH);  PhillipH  r.  Woostcr,  .30  N.  Y.  412;  3  Ahh.  IV.,  N.  S.,  475; 
Roberts  r.  fiilMon,  0  ILar.  &.  J.  110;  Creed  v.  Lancaster  Bank,  1  Oliio  St.  1; 
Thomson  r.  Dougherty,  12  Scrg.  A  R.  448;  .Martin  v.  Olliver,  9  Humph.  501  •. 
49  Am.  Dec.  717;  Dick  r.  Hamilton,  Dca-ly,  322. 


355    PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.   §  142 

fact  of  the  donor's  existini^  indebtedness  conclusive 
a;::^ainst  the  gift.  Existing  creditors  cannot  avoid  the 
gift,  either  at  law  or  in  equitj',  if,  at  the  time  it  was 
made,  their  claims  were  amply  secured;^  nor  if,  when 
in  favor  of  a  member  of  donor's  famity,  tiie  pecu- 
niar}' circumstances  of  the  donor,  at  the  time  of  making 
the  gift,  were  such  that  the  withdrawal  of  the  property 
from  his  assets  did  not  hazard  the  rights  of  his  credi- 
tors, nor  materially  diminish  their  prospects  of  pa}^- 
mont.^  Upon  this  last  point  the  authorities  are  not 
unanimous.  The  minorit}'  contends  that  a  gift  is  void 
as  to  existing  creditors,  irrespective  of  its  amount  and 
of  the  circumstances  and  intention  of  the  donor.^  But 
when  a  voluntary  transfer  is  made  by  an  insolvent 
debtor,*  or  by  a  debtor  in  such  financial  circumstances 
that  the  gift  tends  materially  to  hinder,  delay,  or  de- 

1  Manders  r.  Manders,  4  I.  R.  Eq.  434;  Pell  v.  Tre.lwell,  5  Wend.  661;  Ste- 
phens  V.  Olive,  2  Brown  Ch.  90;  Joliusou  v.  Zaiie,  11  Gratt.  552;  Hester  v.  Wil- 
kinson, 6  Hiimpli.  215;  44  Am.  Dec.  303. 

*  Kipp  r.  Hanna,  2  Bland,  26;  Bonny  v.  Griffith,  Hayes,  115;  Babcook 
r.  Echkr,  24  N.  Y.  623;  Taylor  r.  Eubauks,  3  A.  K.  Marsh.  239;  Jackson  v. 
Tunuo,  3  Desaus.  1 ;  Bracket  v.  Waitc,  4  Vt.  389;  Smith  c.  Lowell,  6  N.  H.  67; 
Thompson  r.  Webster,  7  Jur.,  N.  S.,  531;  4  Drew.  628;  Clements  r.  Ecclcs,  11 
I.  R.  Eq.  229;  Dodd  r.  McGraw,  3  Eiig.  84;  46  Am.  Dec.  301;  Williams  r. 
Banks,  11  Md.  198;  Salmon  v.  Bennett,  1  Conn.  525;  7  Am.  Dec.  237;  Abbe  r. 
Newton,  19  Conn.  20;  Poston  r.  Postcn,  4  Wliart.  27. 

*  Rcadc  V.  Livingston,  3  Johns.  Ch.  481;  8  Am.  Dec.  520;  Mooro  r.  Spence, 
6  Ala.  506;  Footo  v.  Cobb,  18  Ala.  586;  O'Daniel  v.  Crawford,  4  Dev.  197; 
Kissam  v.  Edmondson,  1  Ired.  Eq.  180;  Bogard  r.  Gardley,  4  Smedes  &  M. 
302;  Choteau  r.  Jones,  II  111.  318;  50  Am.  Dec.  460 

*  Annin  r.  Annin,  24  N.  J.  E.(.  181;  Vhc\\>H  v.  Morrison,  24  N.  J.  E^i.  195; 
CmwcU  v.  Hill,  47  N.  H.  407;  Morgan  r.  .McLelland,  3  Dev.  82;  Wellington 
r.  Fuller,  38  .Me.  61;  Kei)py  v.  lU-ppy,  46  Mo.  571;  Stickney  r.  Borman,  2  Pa. 
St.  C7;  Shontz  r.  Brown,  27  Pa.  St.  123;  Raymond  r.  Cook,  31  Tex.  373;  Du- 
lany  r.  firecn,  4  Marr.  (iJtl.)  285;  Walcottr.  Almy,  6  McLean,  23;  Craig  v.  Gam- 
bio,  5  Fla.  VM);  Doughty  v.  King,  2  Stock.  396;  Barnard  v.  Fonl,  L.  R.  4 
Cli.  247;  BuriMio  v.  Bunn,  22  Cal.  194;  Sargent  v.  Chubbuck,  19  Iowa,  37;  Har- 
vey n.  Stcptov,  17  Gratt.  289;  Catchings  v.  Manlovc,  39  Miss.  655;  Welcome 
V.  Batchelder,  23  Me.  85. 


§  14-J        TKUSONAL   VlUirKUTY    Sl'lUlXT   TO   EXKOUTION.  356 

frautl  his  fictliturs.'  it  is  clearly  void  us  aj^uiiist  them. 
Ill  such  ciiiie,  tlu*  inr<'retu'e  of  law  is  irresistible,  and 
cannot  he  overeDUu'  hy  any  r\  ideneo  in  regard  to  the 
debtor's  aetual  intent.* 

Consideml  with  respect  to  existing  creditors,  there 
appears  to  be  no  doubt  that  the  law  ])resinnes,  jiriwa 
facie,  that  a  voluntary  conveyance  is  fraudulent  and 
void.'  ^lany  of  the  authorities  go  further,  and  declare 
this  presumption  to  be  conclusive.*  The  dut}'  of  a  hus- 
band or  father  to  provide  for  his  wife  or  children  is  one, 
however,  which  is  scarcely  inferior  to  his  duty  to  apply 
liis  property  to  the  satisfaction  oi'  his  creditors.  There 
are  manv  cases  in  which  a  *nft  or  settlement  is  made 
upon  a  child,  wife,  or  other  relative,  which  does  not 
operate  as  a  fraud  uj^on  the  creditors  of  the  donor, 
thouo-h  he  is  at  the  time  somewhat  indebted.  There- 
fore,  "  the  better  doctrine  seems  to  us  to  be  that  there 
is,  as  ap])licable  to  voluntary  conveyances  made  on  a 
meritorious  consideration,  as  of  blood  and  affection,  no 
absolute  presumption  of  fraud  which  entirely  disregards 
the  intent  and  purpctse  of  the  conveyance,  if  the  grantor 
liappened  to  be  indebted  at  the  time  it  was  made,  but 
that  such  conveyance  under  such  circumstances  affords 

'  Holmes  r.  Penney,  3  Kay  &  J.  00;  Jones  /•.  Slubey,  G  liar.  &  J.  .37*2;  P.-irk- 
man  r.  Welch,  10  Pick.  2A];  Potter  r.  McDowell,  .'51  Mo.  02;  Wilson  r.  Bu- 
chanan, 7  Gratt.  Xi4;  Worthington  i-.  Bullutt,  G  Md.  172;  Croasiley  r.  Elworthy, 
L.  R.  12  E<i.  158;  Towuseud  v.  Westacott,  2  Bcav.  340;  Skarf  v.  Soulby, 
1  Macn.  &  a.  3G4. 

»  Phelps  r.  Curts,  8  Chic.  L.  N.  208;  Churchill  r.  Wells,  7  Cold.  .'170. 

»Xichola.s  r.  War.l,  1  Heail,  323;  73  Am.  Dec.  177;  Welcker  r.  Price,  2 
Lea,  GG7;  Cheatham  r.  IIlh!<,  2  Tliuj.  Ch.  7G4;  Hutchinson  r.  Kelly,  1  Ilol). 
(Va.)  123;  30  Am.  Dec.  250. 

•  Cook  r.  Johnson,  1  Bea^il.  Ch.  51;  72  Am.  Dec.  381;  Belford  r.  Crane.  16 
N.  J.  E«i.  272;  85  Am.  Dec.  1.'55;  Miller  r.  Thompson,  3  Port.  1%;  Spencer  v. 
Go«lwin,  30  Ala.  .355;  Crawf.ml  i\  Kirksey,  55  Ala.  282;  28  Am.  Rep.  704; 
Lockhard  r.  Bcckky,  10  W.  Va.  87;  Huggins  r.  Pcrrinc,  30  Ala.  30G;  08  Am. 
Dec.  131. 


357  PERSONAL  PROPERTY   SUBJECT  TO  EXECUTION.        §  142 

only  prima  facie  or  presumptive  evidence  of  fraud,  which 
may  be  rebutted  and  controlled."^  To  rebut  the  pre- 
sumption, the  financial  circumstances  of  the  grantor  at 
the  time  of  the  grant  may  be  shown,  and  if  it  appears 
that  he  was  then  abundantly  able  to  pay  all  liabilities 
existing  against  him,  that  the  property  donated  was 
an  inconsiderable  portion  of  his  estate,  and  that  after 
the  donation  he  remained  able  to  satisfy  all  his  cred- 
itors, then,  unless  there  are  other  circumstances  indi- 
cating an  intent  to  defraud,  the  presumption  must  be 
regarded  as  overcome."  Subsequent  creditors  can  at- 
tack a  voluntary  conveyance  only  upon  the  ground  that 
it  was  made  with  a  fraudulent  intent.^  "The  law  now 
appears  to  be  well  settled  that  a  man  may,  for  the  sole 
purpose  of  protecting  his  family  against  the  casualties 
and  accidents  of  trade,  settle  his  property  for  their  ben- 
efit, and  that  such  settlement  will  be  upheld  against  liis 
subsequent  creditors,  unless  it  shall  appear  that  the 
property  was  so  situated  that  the  community  could 
hi^ive  been  easily  misled  as  to  the  title  of  the  true 
owner.  The  very  object  of  such  settlement  by  a  man 
engaged  in  commerce  is  to  prefer  his  family  to  those 
who  may  tliereafter  become  his  creditors,  and  it  may 
be  safely  admitted  that  the  design  was  to  protect  the 
property  against  the  deljts  tlius  contracted;  for  other- 
wise  the  conveyance   would   be  simply   an   idle  cere- 

>  Lcrow  r.  Wilinarth,  9  Allen,  386;  IIoMcu  r.  Bumham,  G3  N.  Y.  74;  see 
note  to  Junkinu  v.  Clutnent,  14  Am.  Dec.  705. 

'  fJridley  r.  Watson,  53  111.  103;  Pratt  v.  Curtis,  2  Low.  87;  Stewart  r. 
Rogern,  2^)  Iowa,  37.');  0'>  Am.  Dec.  75)4;  Wincliester  v.  Cliartcr,  97  Majia!  140; 
Miller  I-.  Pierce,  (i  Watta  &.  S.  101;  French  v.  Holmes,  07  Me.  IWi. 

*  luhaMuint.s  of  Pdhani  v.  Al.lricli,  8(;ray,  Al');  ()9  Am.  Dec.  2rir);  Bjuigor 
r.  Warren,  .3-1  Mo.  324;  M  Am.  Dec.  G.">7;  Hester  r.  Wilkinson,  6  Humph.  2iri; 
44  Am.  Dec.  303;  Co»l*y  r.  Ross's  Adm'r,  3  J.  J.  Marsh.  2'.H);  20  Am.  Dec.  140; 
Laocaater  r.  Dolan,  1  Rawlc,  231;  18  Am.  Dec.  C25;  Smith  r.  Vfxlges,  92  U.  S. 
183. 


S  U[\        rKU^OSM.  rROPERTY  SURTECT  TO  EXECUTION.  SoS 

inony.  Tlio  liij^lit  to  make  tho  scttlriiuMit  carries  with 
it  tho  rii^lit  io  the  lu'iittioiai  ics  to  lioM  and  tnjoy  the 
|Mojt«Tty  a;j;ainst  tlic  ilaims  of  tlu'  dniKir,  di-  a-^aiiist 
tlioso  wlu)  may  assert  a  title  tlircuij^di  liiiii.  Tl.c  coii- 
voyaiu-e,  when  execiiti'd  acfordiiiLj^  to  tlic  t'ornis  and 
cereinonies  of  tlio  law,  and  made  a  matter  of  record,  is 
notice  to  the  world  not  to  trust  the  donor  longer  ujion 
the  faith  of  the  i>ii>jnr(y  conveyed;  and  while  it  may 
Lave  the  eifect  of  impairinjj^  his  credit,  it  cannot  he  ro- 
t^arded  as  a  fraud  u[)on  those  wlio  liave  aini)le  oppor- 
tunity to  learn  his  true  <'ontlition." '  On  the  other 
liand.  if  a  voluntary  eonNcyanee  is  made  with  intent 
to  delraud  subsequent  creditors,  it  is  void  as  against 
them.  "  It  is  perfectly  well  settled  that  if  there  bo 
any  design  of  fraud  or  collusion,  or  any  intent  to  de- 
ceive third  j)ersons,  in  making  a  voluntary  conveyance, 
although  the  grantor  be  not  then  indebted,  the  trans- 
fer will  be  viMdable  by  subsequent  creditors;^  and  the 
design  to  defraud  may  l)c  inferred  from  the  fact  that 
the  grantor,  when  he  made  the  deed,  was  upon  the  eve 
of  entering  into  business  requiring  more  means  than  he 
then  possessed,  and  in  the  course  of  wliieh  he  must 
necessarily  contract  debts."  ^ 

§  143.  A  Conveyance  to  the  Use  of  the  Grantor  is 
by  the  statute  of  :\  lienry  VII.,  c.  4,  void  as  against 
creditors.  The  purposes  for  which  such  a  deed  is 
made  and  the  actual  intention  of  the  parties  arc  im- 
material. Nor  does  it  make  any  dilference  that  the 
grantor  was  solvent  or  entirly  free  from  debt  when  he 

>  Bullitt  r.  Taylor.  3-4  Miss.  70S;  09  Am.  Dec.  412. 

»  \ViDchcjit«r  r.  Charter,  12  Allen,  CIO;  Elliott  v.  Horn.  10  Ala.  .348;  4^1 
Am.  Dec.  488. 

»  Bevckinan  r.  Montgomery,  1  McCartcr,  100;  80  Am.  Dec.  229;  Kidgeway 
V.  Underwood,  4  Wa«li.  C.  C.  137. 


359  PERSONAL  PROPERTY   SUBJECT  TO  EXECUTION.        §  143 

made  the  transfer.  "  In  all  the  refinements  of  uses  and 
trusts,  in  the  midst  of  multiplied  distinctions  between 
legal  and  equitable  interests  which  have  abounded  in 
the  progress  of  Anglican  jurisprudence,  this  principle 
has  never  been  doubted,  and  the  mockery  of  a  transfer 
by  a  debtor  of  his  property,  to  be  held  for  the  use  of 
the  debtor,  has  never  been  allowed  to  defeat  the  rights 
or  remedies  of  creditors."^  Hence  "it  has  been  con- 
sidered as  settled  lonsf  since  that  if  an  absolute  deed  is 
given  with  intent  to  secure  a  debt,  such  deed  would  be 
void  as  it  respects  bona  Jide  creditors,  as  it  does  not 
disclose  the  real  nature  of  the  transaction.  It  places 
the  parties  in  a  false  position  as  it  respects  the  public. 
It  holds  out  the  grantee  as  the  real  owner,  when  in 
fact  the  grantor  is,  or  may  be,  the  owner.  It  tends  to 
lull  the  creditors  of  both  parties  into  false  security, 
and  to  conceal  from  them  the  real  condition  of  their 
debtors.""  "Honesty  and  fair  dealing  require  that 
the  truth  of  the  transaction  should  concur  with  its 
appearances;  that  the  whole  truth  should  be  developed, 
and  that  the  transaction  should  not  wear  the  aspect  of 
a  simple  sale  or  preference,  and  yet  in  fact  be  merely 
a  disguise  or  color,  by  means  of  which  the  debtor  is 
enabled  to  enjoy  a  secret  interest  in  and  control  over 
the  goods  and  their  proceeds,  of  which  other  creditors 
arc  not  informed  l)y  the  proceeding  itself"^ 

'  Bumf)  on  Friiudiilciit  Conveyaiicen,  239.  For  application  of  the  law  against 
conveyances  containing  rcMervationa  for  tho  bcnclit  or  a<lvantagu  of  grantor,  sco 
Mackic  V.  Cairns,  llopk.  373;  WiUon  v.  Cheshire,  1  McConl  Ch.  '2211;  Brown 
r.  DonaM,  I  Mill  Ch.  1*97;  .lackMon  r.  Parker,  9  Cow.  73;  Van  Wyck  ?'.  .Seward, 
n  Wen.l.  .375;  LukinH/-.  Ainl,  (5  Wall.  IH;  Smith  r.  Smith,  11  N.  H.  4W;  liar- 
hank  V.  llammnnil,  3  Sum.  4'J9;  Curtia  v.  Leavitt,  15  N.  Y.  9;  Sturdivaut  r. 
Davia,  9  Ired.  3(;.');  L.id.1  r.  Wiggin.  .3.")  N.  H.  4'.'1;  G9  Am.  Dec.  551. 

'  North  V.  lielden,  13  Conn.  371J;  35  Am.  Dec.  83. 

»Mc<'ull.><li  r.  Ilenderaon,  7  WatU,  4;i4;  32  Am.  Dec.  778;  Winklcy  v. 
Hill,  9  N.  H.  .tl;  31  Am.  Due.  '2lo. 


§  Ul        PKRiilONAL   TROPERTY   SUIUECT   TO   KXKC^UTION.  360 

vj  144.  Conditional  Conveyances.  A  transt'or  is 
not  Ihhui  fi({(',  wlu'ii  mack'  l>y  an  iiisolveiit  debtor 
unless  it  is  um-t>iRlitioiial.  Tlu' condaft  of  sale  must 
be  absolute,  IT  tlu-  drbtor  n'tains  the  right  to  revoke 
the  eontraet.  the  sale  i.s  iVauihileiit  jicr  sr;^  and  a  like 
result  tolK>\vsa  stli)ulatit)U  that  the  vendee  may,  l.vl'ore 
the  payment  of  the  purchase  price,  return  the  proj)- 
orty  and  annul  the  sale."  A  transfer,  of  which  part 
of  the  consideration  is  that  the  ernrntee  shall  tliereafter 
bUj>iH)rt  the  debtor  or  his  family,  is  regarded  as  an 
etfort  to  preserve  a  right  or  interest  in  property,  and 
keep  it  beyond  the  reach  of  the  grantor's  creditors.  If 
the  grantor,  innnediately  after  making  such  a  convey- 
ance, is  unable  to  ])ay  his  debts,  the  transfer  is  void;* 
but  it  is  otherwise  when,  notwithstanding  the  convey- 
ance, the  grantor  retains  property  sufficient  to  satisfy 
his   creditors.*     And    it   is  said    that   the    deed   may 

'  West  r.  Sncxlgrass,  17  Ala.  449;  Tarljack  r.  Marbury,  2  Vern.  510;  Bethel 
r.  Stanhope,  Cro.  Eliz.  810;  Peacock  r.  Monk,  1  Vcs.  Sr.  12;  Anonymous, 
Dyer,  12115  a;  Jeukyu  v.  Vaughan,  '.i  Drew.  419. 

*  Shannon  r.  Coninionwcalth,  8  Sorg.  &  R.  444;  West  v.  Snodgrasa,  17  Ala. 
549.  As  to  the  effect  ui  an  agrecineut  that  debtor  may  reiiurcliaae,  see  Towno 
r.  Hoit.  14  N.  H.  Gl;  Alhee  r.  Webster,  IG  N.  H.  lUi'I;  Newsom  v.  Roles,  1 
Ire.l.  179;  (Menn  r.  Ramlall,  '2  M.l.  Ch.  "A'O;  liurr  v.  Hatch,  3  Ohio,  .'527. 

'  Cliurch  r.  Chapin,  35  Vt.  223;  Bott  r.  Smith,  21  Ikav.  511;  lleii.lerson  v. 
Downing,  24  Miss.  lOG;  Sitlensparkcr  ?•.  Sidensparker,  52  Mc.  481;  83  Am.  Dec. 
527;  Gunn  r.  Butler,  18  Pick.  248;  Morrison  r.  Morrison,  49  N.  II.  G9;  Robin- 
son r.  Robards,  15  Mo.  459;  fleiger  r.  Welsh,  1  Rawle,  349;  Rollins  p.  Mooer.i, 
25  Me.  192;  Hunt  r.  Knox,  34  Miss.  655;  Robinson  v.  Stewart,  10  N.  Y.  189; 
Miner  r.  Warner,  2  Grant  Cas.  448;  Jones  »'.  Spear,  21  Vt.  42G;  Stokes  v. 
Jones,  18  Ala.  734;  Hawkins  r.  Motfitt  10  B  Mon.  81;  McLean  »•.  Button,  18 
Barb.  450;  Graves  r.  Bloudell,  70  Me.  194;  Egery  r.  Jolinson,  70  Mo.  2G1; 
Johnston  r.  Harvy,  2  Penr.  &  W.  82;  21  Am.  Dec.  42G;  McClurg  v.  Lccky,  3 
Peur.  &  W.  91. 

*  Barker  v.  O.il)ome,  71  Me.  71;  Usher  r.  Hiizeltine,  5(freeul.  471;  17  Am. 
Dec.  253;  Hapg<xxl  r.  Fisher,  'M  Me.  407;  .50  Am.  Dec.  GG3;  Drum  r.  Painter, 
27  Pa.  St.  148;  Buchanan  v.  Clark,  28  Vt.  799;  Mills  v.  Mills,  3  Hea.l,  705; 
John»f»n  r.  Zane,  II  Gratt.  5.'>2;  Eiton  r.  Perr}',  29  Mo.  9G;  liarrow  c.  liailey, 
5  Fla.  9;  Mahoney  r.  Hunter,  30  Ind.  24<J;  Tibbala  r.  Jacobs,  31  Conn.  428; 
JohnaoD  r.  Johnoon,  3  Met.  C3. 


361  PERSONAL  PROPERTY  SUBJECT  TO   EXECUTION.        §  145 

always  be  supported  by  showing  that  the  vendee  paid 
the  full  value  of  the  property.  For  in  such  a  case,  it 
appears  that  the  agreement  to  support  the  grantor  is 
not  made  in  consideration  of  property  to  which  his 
creditors  are  entitled.^  A  sale  made  by  an  insolvent 
on  a  lonsf  credit  indicates  an  intent  to  withdraw  his 
assets  from  the  reach  of  his  creditors;  and  has  often 
been  regarded  as  sufficient  evidence  of  fraud  to  avoid 
the  sale.- 

§145.  Mortgages. — Mortgages,  under  which  the 
debtor  retains  possession  of  the  property,  witli  the 
power  to  sell  the  same,  arc  generally  treated  as  fraud- 
ulent and  void  as  ao:ainst  creditors.^  Such  an  in.stru- 
ment  affords  no  security  to  the  mortgagee,  and  if  valid, 
could  liave  no  other  effect  than  to  give  the  mortgagee 
preference  over  other  creditors.  A  deed  of  tru.st  to 
creditor.s,  or  to  some  one  for  their  benefit,  in  which  the 
debtor  reserves  the  power  to  sell  the  property  until 
default  is  made  in  the  payment  of  tlie  debts,  is  also 
void.*  But  in  some  of  the  states,  mortgages  on  stocks 
of  goods  in  stores,  containing  a  stipulation  that  the 

»  Slater  r.  Du.lky,  18  Pick.  .37.*?;  Albee  v.  Webster,  10  N.  II.  .%'2;  see  also 
OrienUl  lixiik  r.  Haskins,  3  .Met.  3.'{2;  37  Am.  Dec.  140. 

'  biirlaml  r.  Walker,  7  Ala.  'JG'J,  where  the  notes  were  due  in  from  seven  to 
t«n  years;  Pope  v.  Andrews,  1  .Smedes  &  M.  Ch.  1.3."),  where  the  notes  were 
due  in  nine,  ten,  and  eleven  years;  Ktpner  v.  IJurkiiart,  5  Pa.  St.  47S,  where 
the  not4-8  were  due  in  six  years;  Orannis  r.  Smith,  3  Humph.  173,  wliero  the 
notcH  were  due  in  from  five  to  ten  years. 

•Collins  r.  .Myers,  l(i  Oliio,  547;  Harman  r.  Abbey,  7  Ohio  St.  218;  Cris- 
woM  P.  Sheldon,  4  N.  Y.  580;  Armstrong  r.  Tuttle,  .34  Mo.  43'2;  King  r. 
Kenan,  38  Ala.  63;  Constantino  r.  Twelves,  29  Ala.  G07;  Addingtun  v.  Kthcr- 
e.lfc'c.  12(;nitt.  4.30;  Birthop  r.  Warner,  19  Conn.  4G();  Puiidett  r.  Blodgett,  17 
N.  H.  298;  PLu-c  r.  Ivui^worthy,  13  W'u.  029;  80  Am.  Due.  758;  Freeman  r. 
Rawson.  5  Ohio  St.  I;  Cardmr  r.  McEwan,  19  N.  Y.  123;  IJarnct  i'.  l-Vrgus, 
61  111.  :i.V2;  ll4;ad  r.  Wdnon,  22  III.  .377;  74  Am.  Dee.  159. 

•  Br.H.ks  r.  Wiiuer,  20  Mo.  503;  Walter  v.  Wimer,  24  Mo.  G3;  Chopard  v. 
Bayard,  4  Mmn.  5.13. 


§  14:>        PERSONAL  PROrERTY  SUIilECT  TO  EXECLTTION.  3G2 

mortii^agors  may  ctMitimu"  tlu-ir  liiisiiicss.  rctailini^  the 
SjtMxls  inortixa«j^iHl,  ainl  i<  placiiiijf  tluin  with  oIIut  l^oocIs 
of  likt'  valur,  havo  lu-i'ii  u|ilitM.'  W'Iutc  a  c-liattol 
inort«jfa«xi\  l)y  its  tiTius,  |>oniuls  the  inorti^aj^or  to  re- 
main in  po.ssi'ssion  <»t*  tlie  itrojuTty,  aiul  to  sill  portions 
thcrt'«>f  and  retain  thr  proccotls  of  siu-li  sales,  it  is  in 
Xcw  Yi'ik  fraiululriit  ami  void  as  a  matter  of  law." 
But  there  seems  to  be  no  objeetion  in  that  state  to 
j^ermittiiiix  tlie  m(>rt;4ai^()r  to  remain  in  possession  and 
make  sales,  if  lu>  ai^rers  to  ajiply  the  proeeeds  of  sueh 
sales  to  the  satisfaction  of  tin ■  mortgage  debt.^  In  sueh 
a  case,  the  mortgage  is  not  fraudulent  jocrsc;  the  reten- 
tion of  possession  is  merely  evidence  of  fraud  }>rinia 
fac'e.  If,  under  sueh  an  agreement,  the  mortgagors 
make  sales,  it  is  as  the  agents  of  and  as  the  act  of  the 
mortgagees,  and  every  sale  satisfies  the  mortgage  jno 
tanto,  whether  the  money  ever  reaches  the  mortgagees 
or  not/  If  the  mortgagor  is,  by  agreement  of  tlie 
parties,  permitted  to  retain  any  portion  of  tlie  prcK-eeds 
of  sales  made  by  him,  either  for  liis  own  use,  or  for  the 
support  or  benefit  of  liis  family,  or  any  member  thereof, 
the  m()rtj]:a«_ce  is  doubtless  fraudulent  and  void  as  a  mat- 
terof  law/  The  fact  that  a  mortLfai^e  embraced  much 
more  property  than  was  necessary  to  amply  secure  the 
mortgagee  has  been  held  to  be  a  circumstance  binding 
to  show  that  it  was  made  to  hinder,  delay,  or  defraud 

'  Hickm.-ui  r.  Perrin,  6  Cold.  135;  Jones  r.  Huggcfonl,  'i  Met.  SIT);  Briggs 
r.  Parkiiiaii,  '2  Met.  *Jot>;  37  Am.  Dec.  8'j;  (loogins  r.  (Jilmore,  47  Me.  1>;  74 
Am.  Dec.  47..';  Hughes  r.  Corey,  20  Iowa,  SIM);  Gay  r.  Hi<lwell,  7  Mich.  510. 

»  E<lgell  r.  Hart,  9  N.  Y.  213;  5'J  Am.  Dec.  532;  Mar»tfia  v.  Vulter,  18 
Bosw.  131;  12  Abb.  I'r.  144;  Miltnacht  v.  Kelly,  3  Keyca,  408;  3  Abb.  App. 
302;  5  Abb.  Pr.  445;  UushcU  v.  Wiiiue,  37  N.  Y.  595;  4  Abb.  Pr.,  N.  S.,  38S; 
.SimmoDB  r.  Jenkins,  70  N.  Y.  483. 

»  Ford  r.  WiUianiii,  13  N.  Y.  577;  07  Am.  Dec.  83. 

«  Conkling  r.  Shelley,  23  N.  Y.  300;  84  Am.  Dec.  348. 

*  Place  r.  Langwr.rthy.  13  Wis.  029;  HO  Am.  Dec.  758;  Ulakcaler  v.  Roes- 
man,  43  Wia.  123;  Fiah  v.  iiardhaw,  45  Ww.  008. 


363  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  U6 

the  creditors  of  the  mortgagor.^  But,  on  the  other 
hand,  it  is  claimed  that  the  creditors  are  not  prejudiced 
by  such  a  mortgage,  because  they  ma}^  release  the 
property  by  paying  the  mortgage  debt,  or  may  sell  the 
propert}*  subject  to  the  lien.^  A  mortgage  may  be 
made  for  the  purpose  of  hindering,  delaying,  or  defraud- 
ing creditors,  in  which  case  it  is  void  as  against  them. 
If  made  for  a  sum  in  excess  of  the  debt  intended  to  be 
secured,  it  is  fraudulent  and  void.^  But  if  the  intent  is 
to  secure  future  advances  to  be  made,  as  well  as  an  ex- 
isting debt,  the  mortgage  is  not  fraudulent,  though  the 
fact  that  it  is  partly  for  future  advances  is  not  stated 
therein.* 

§  146.  Assignments  for  Benefit  of  Creditors. — It 
seems  to  l)e  unanimously  conceded  that  an  a.ssignment 
to  a  trustee  for  the  benefit  of  creditors,  whether  giMieral 
or  partial,  is,  in  the  absence  of  statutory  prohibition, 
valid.'^     It  operates  to  withdraw  the  property  from  the 

»  Bailey  r.  Burton,  8  Wend.  3:W;  Mitchell  v.  Beal,  8  Yerg.  134;  29  Am. 
Dec.  108;  Bennett  v.  Union  Bank,  5  Humph.  CI2;  Hawkins  r.  AUston,  4  Irod. 
Eq.  137;  Adanw  v.  Wheeler,  10  Pick.  199;  Ford  r.  Williams,  13  N.  Y.  577; 
67  Am.  Dec.  83;  David  v.  Hansom,  18  111.  39G. 

»  Downs  ?■.  Kissam,  10  How.  12;  Bink  of  Georgia  r.  Higginbottom,  9  Pet.  48. 

»  Dwier  r.  McLaughlin,  2  Wend.  000;  Biiley  v.  Burton,  8  Wend.  339. 

*Tully  r.  HirliH,-,  .35  Cal.  :«)2;  95  Am.  Dec.  102. 

*  Bra-,hcar  r.  West,  7  Pet.  009;  Kottlcwell  v.  Stewart,  8  (iill,  473;  Phippen 
V.  Durham,  8  Cratt.  404;  Do  Forest  r.  Bacon,  2  Conn.  033;  Niolon  r.  Douglass, 
2  Hill  Cli.  443;  .30  Am.  Doc.  308;  Moore  r.  CoUings,  3  Dev.  120;  Pearson  r. 
R«Kkliill,  4  B.  M..n.  29<i;  Hin.lman  v.  Dill,  11  Ala.  089;  Hall  v.  Denison,  17 
Vt.  311;  Nightingale  v.  Harris,  G  K.  I.  328;  Dana  r.  li;ink  of  United  State.t,  5 
WatU  4  S.  224;  Do  Ruytcr  v.  St.  Peter's  Church,  3  N.  Y.  2:i8;  London  v. 
Parsley,  7  Jones,  319.  An  assignment  of  all  tho  assignor's , property,  for  tho 
equal  benefit  of  his  creditors,  is  untiuestionably  valid,  and  if  exocutetl  more 
than  six  months  before  proceedings  in  bankruptcy  are  instituted  against  tho 
aiwignor,  it  cannot  l>e  assailed  by  tho  assignee  in  bankruptcy,  nor  to  any  extent 
impaired  by  procee<lings  under  tho  bankrupt  act.  Mayer  v.  Hellman,  8  Chic. 
L.  N.  177.  Such  an  assignment  is  not  fraudulent  against  creditors,  nor  d<M3a 
it  give  any  creditor  a  preference  over  anrtther.  It  dr>es  not  in  any  n^spcct  ac- 
complish purpr»iM-.i  in  hostdity  with  tliosc  wliich  the  b.mkrupt  act  is  de-»igne<l 
to  promote.     It  will,  iu  all  probability,  bu  permitted  to  stand,  though  nuulo 


§  ua        rVJiS^O^AL  PROPERTY  SUBJECT  TO   IIXF.CUTION.  :m 

rt'iuli  (if  all  lions  and  processes  takinji;  elleet  8uljse<iiiently 
to  the  ixeeutioii  of  the  trans(V<r.      In  other  words,  al- 
thoii'jjh  sueli  a  tran-^fer  neeessarlly  (nids  to  liiiuler  and 
delav  eri'dltors.  I>y  dritrl\  iiii;  tlu'Ui  ui'  thf  right  to  tako 
the  debtor's  [)roperty  in   execution,  and  a[)[)ly  its   pro- 
ceeds to  tlir  payment  of  their  debts,  yet,  as  tlie  creditor 
had  the  right  to  directly  turn  over  his  property  to  his 
creditors,  in  satisfaction  of  tluir  diiiKunls,  ho  is  allowed 
to  acconn>lish  the  same  result  through  the  intervention 
of  a  trustee.     To  deny  the  right  to  hinder  creditors,  in 
a  certain  bonso,  would  he  to  deny  the  right  to  make  au 
assignment  for  the  benodt  of  creditors,  for  such  assign- 
ment, if  given  aiiy  operation,  must  necessarily  ])revent 
some  of  the  creditors  from  reaching  under  execution  or 
attachmont  property  which  they  could  have  reached 
but  for  such  assignment.     And  the  assignor  may  have 
foreseen  antl   intended  this  result.      He  may  have  de- 
sired to  prevent  the  sacrifice  of  his  assets,  which  must 
inevitabl}'  attend  their  immediate  seizure  and  sale  under 
execution.     To  this  extent  he  has  the  right  to  hinder 
his  creditors,  and  tlie  assignment  is  not  rendered  void 
thereby,  provided  tho  hindrance  is  only  such  as  results 
from  turning  over  the  j)roporty  in  good   faith,  to  be 
applied   to  the  satisfaction  of  his  debts.*     If,  however, 

within  less  tlian  six  months  prior  to  the  commencement  of  proceedings  in 
bankruptcy.  Sed^^ick  r.  Place,  1  Nat.  IJank.  Reg.  20-1;  Langloy  r.  Perry,  2 
Kat.  Bank.  Reg.  .V.KJ;  In  re  Kintzing,  3  Nat.  Bank.  Reg.  217;  I'arriu  r.  Craw- 
ford. 2  Nat.  Bank.  Reg.  G02;  In  re  Wells,  1  Nat.  Bank.  R.g.  171;  In  re 
Marter,  12  Nat.  liink.  Reg.  185.  Contra:  fJlobe  lua.  Co.  v.  Cleveland  Ins.  Co. 
8  Chic.  L.  N.  2.'>S;  13  Alb.  L.  J.  305;  In  re  Burt,  1  Dill.  431);  In  ro  Ooldschmidt, 
3  Nat.  P.:ink.  R.g.  1(15;  3  Ben.  37'J;  In  re  Laugley,  1  Nat.  Bank.  lUg.  .^.50; 
In  re  Smith,  3  Nat.  Bank.  R<g.  377;  4  Ben.  1;  Spicer  v.  Ward,  3  Nat.  Bank. 
Reg.  512. 

•  Baldwin  r.  Pcct,  22  Tex.  70S;  75  Am.  Dec.  80G;  Hempstead  v.  .luhnaon, 
18  Ark.  123;  05  Am.  Dec.  4.'.S;  Hoffman  r.  Machall,  5  Ohio  St.  124;  04  Am, 
Dec.  0.37;  Houston  R.  R.  r.  Winter,  44  Tex.  009;  Bailey  r.  Millj,  27  Tex.  437; 
Pike  r.  Bacon,  21  Me.  280;  38  Am.  Dec.  259. 


365  PERSONAL  PROPERTY    SUBJECT  TO   EXECUTION.       §  146 

the  hindering  of  creditors  was  the  object  rather  than 
the  incident  of  the  assiGfnment:  if  the  assii^^nment  was 
resorted  to  as  a  mere  device  to  gain  time  or  to  coerce 
the  creditors,  or  some  of  them,  into  making  some  set- 
tlement of  their  claims,  to  which  the  assignor  was  not 
legally  entitled, — it  would  doubtless  be  void.^ 

In  the  absence  of  any  statutory  inhibition,  a  debtor 
may  prefer  any  one  or  more  of  his  creditors,  either  by 
making  payment  of  his  liabilities  to  them,  or  by  turn- 
ing over  property  to  them  to  be  held  as  sccurit}^  or  to 
be  applied  at  once  at  an  agreed  value,  or  by  means  of 
a  sale,  to  the  extinction  of  the  debt.  In  many  of  the 
states  statutes  have  been  enacted  forbidding  prefer- 
ences in  assignments  for  the  benefit  of  creditors;  but 
in  the  absence  of  such  statutes,  the  preferring  of  any 
creditor  or  class  of  creditors,  if  free  from  any  fraudu- 
lent intent,  docs  not  render  the  assignment  fraudulent 
nor  void."  The  fact  that  some  of  the  creditors  are 
preferred  to  others  will  doubtless  cause  an  assign- 
ment to  be  viewed  with  suspicion;  and  may,  when 
combined  with  other  suspicious  circumstances,  pro- 
duce tlie  conviction  that  it  was  intended  to  defraud 
the  other  creditors.  Of  course,  if  any  actual  design 
to  defraud    taints  the  assignment,  it  is  void.     There 

>  Knight  r.  Packer,  1  Beasl.  Ch.  214;  7'2  Am.  Dec.  388;  Kimball  v.  Thorap- 
•on,  4  Cuah.  44) ;  50  Am.  Dec.  790. 

*  Note  to  C'rawior«l  r.  Taylor,  20  Am.  Dec.  584;  Sommorvillc  r.  Ilorton,  4 
Yerg.  541;  20  Am.  Dec.  242;  Buffum  v.  Oroen,  5  N.  H.  71;  20  Am.  Dec.  502; 
Wilkei  r.  Ferri.s,  5  Jolms.  S.Ij;  4  Am.  Dec.  304;  Mackie  r.  Cairns,  5  Cow.  547; 
15  Am.  Dec.  477;  Murray  r.  Judson,  9  N.  Y.  73;  59  Am.  Dec.  516;  Kuykim- 
dall  r.  MclVmal.l.  15  Mo.  410;  57  Am.  Dec.  212;  Arthur  r.  C.  A  R.  Bank,  9 
Smedeii  &  M.  3'.»4;  4S  Am.  Dec.  710;  Skipwith  r.  Cunningham,  8  Leigh,  271; 
31  Am.  Dec.  042;  Orover  r.  W.ikeman,  11  Wen.l.  1S7;  25  Am.  Dec.  024; 
Hcmp«tca<l  r.  .lohnnon,  J8  Ark.  12.1;  05  Am.  Dec.  453;  Nye  v.  Van  Hunan,  6 
Mich.  .'?2y;  74  Am.  !)<•<;.  G'.K);  ronlni:  Malcolm  r.  Hall,  9  (;ill.  177;  48  Am. 
Doc.  dSS;  Deimy  r.  Dana,  2  Cush.  100;  48  Am.  Doc.  C55;  Johuaon  v.  McGrow, 
11  Iowa.  l.'*l;  77  Am.  Dec.  137. 


giiii      rKU.soNAL  ruorEHTY  suikiixr  td  kxkci'tion.       3ca 

aro  scvoral  thinLjs  wliicli,  wIumi  conncctiHl  witli  an  as- 
sii^mnoiit,  aiv  wcll-cstiiMishc'il  bailL;cs  (•!'  tVaiid,  and 
sonic  of  wliicli  render  the  assiufiinient  IVaudiilcnt  j)cr 
sc.  Tilt"  itmst  promiiuMit  ol"  tlu'sc  will  now  he  nicn- 
tioncil.  An  as^ij^nnicnt  will  not  be  allowed  to  with- 
draw property  from  the  reach  of  the  creditors,  that  it 
n)ay.  to  any  extent,  he  securetl  for  the  benefit  of  the 
assignor.  He  niii-^t  j>art  with  all  interest  in  tli(^  prop- 
erty, except  his  right  to  such  surplus  as  may  remain 
after  satisfying  the  demands  of  his  creditors.  Hence, 
when  it  appears  that  the  debtor  has  reserved  some 
portion  of  the  property,  or  some  interest  therein,  for  his 
own  benrllt;  or  that  lie  stipulates  for  some  benefit  or 
advantiige  for  himself  or  for  his  family,  to  be  reserved 
out  of  the  proceeds,  —  it  is  evident  that  he  thereby  seeks 
to  withdraw  something  of  value  from  the  reach  of  his 
creditors,  and  the  assignment  is  fraudulent  per  ne}  Nor 
is  it  necessary  that  this  reservation  appear  on  the  face  of 
the  assignment.  As  the  intent  to  reserve  some  benefit 
to  the  assignor  is  very  often  present,  many  devices  have 
been  resorted  to  for  the  purpose  of  accomplishing  it. 
But  in  whatever  guise  it  may  be  concealed,  it  will, 
when  discovered,  avoid  the  assignment.     As  the  as- 

>  Pike  r.  Bacon,  21  Me.  2S0;  .IS  Am.  Dec.  259;  Niolon  v.  Douglas,  2  Hill 
Ch.  44.3;  30  Am.  Dec.  3138;  Beck  r.  Bunlctt,  1  Paige,  305;  19  Am.  Dec.  4.3G; 
Green  r.  Trammel,  3  Md.  11;  McAllister  v.  Marshall,  G  Biiiii.  338;  G  Am.  Dec. 
458;  Harri.s  r.  .Sumner,  2  Pick.  129;  Bradbury's  Estate,  1  Aaluii.  212;  Green 
r.  Branch  Bank,  33  Ala.  C43;  Goodrich  v.  Downs,  G  Hill,  438;  Anderson  v. 
Fuller,  1  McMuU.  Eq.  27;  3G  Am.  Dec.  290;  Faunce  r.  Lesley,  G  Pa.  St.  121; 
Shaffer  v.  Watkins,  7  Watts  &  S.  219;  Austin  r.  Johnson,  7  Humijh.  191; 
Quarlcs  r.  Kerr,  14  Gratt.  48.  In  the  folloMing  caaes  the  a-ssignment  was  held 
void  for  providing  for  support  of  grantor's  family:  Richards  v.  llaazard,  I 
Stew.  &  P.  139;  Johnston  v.  Harvy,  2  Pen.  &  \W.  82;  21  Am.  Dec.  42G;  Hender- 
son r.  Downing,  2i  Miss.  1 17.  In  Mc.id  v.  Phillips,  1  Sand.  C'h.  83,  tlie  debtor 
reserved  m<mey  to  pay  expenses  of  suits;  in  Harney  »'.  Peck,  4  Smcdos  &  M. 
229,  he  reserved  possession;  in  McClurg  r.  Lecky.  3  Pen.  &  W.  83,  23  Am.  Dec. 
04,  he  was  to  ho  employed  by  tiie  assignees,  at  sucli  price  as  he  sliould  judge 
proix.r;  and  ia  each  ca»o  the  a^tsignmeut  was  held  void. 


367  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  146 

signee  is  chosen  by  the  assignor,  they  are  usually  per- 
sonal friends,  and  entirely  in  accord  with  respect  to 
any  scheme  which  nia}^  aid  the  assignor  at  the  ex- 
pense of  his  creditors.  The  assignor  may  therefore 
usually  rely  upon  the  assignee  to  carry  out  any  ante- 
rior undcrstandine:  or  am-eement  without  insertino'  it 
in  the  assignment,  nor  giving  it  any  other  written  au- 
thenticity. But  it  may  be  proved  and  avoided  by  any 
competent  evidence.^  The  existence  of  a  fraudulent 
agreement  may  be  inferred,  in  the  absence  of  direct 
proof  of  its  terms,  from  the  conduct  of  the  parties. 
Thus  where  it  was  shown  that  the  assignor  was  per- 
mitted to  remain  in  the  possession  of  the  property  as- 
signed, and  to  receive  benefit  therefrom,  the  supreme 
court  of  Texas  said:  "Unquestionably,  the  deed  is  to 
be  received  in  the  light  of  surrounding  circumstances, 
in  order  to  arrive  at  the  real  intention  of  the  parties. 
Unquestionably,  the  assignor,  remaining  in  possession 
of  the  goods  to  dispose  of  them  as  agent  for  the  trus- 
tee, must  be  deemed,  iwlma  facie  at  least,  to  have  con- 
ducted iiimsclf  in  his  dealing  with  them  in  accordance 
with  the  understanding  between  himself  and  his  prin- 
cipal. The  latter  was  bound  to  take  notice  of  the 
manner  in  which  he  conducted  himself  in  his  employ- 
ment. Wl)at  the  agent  did,  the  principal  must  be  pre- 
sumed t(j  have  a.ssented  to;  and  it  is  not  unreasonable 
to  suppose  that  parties  had  contemplated  in  advance  a 
lino  of  conduct  wliich  they  are  shown  to  have  pursued. 
Althougli  tlie  employment  of  tlie  debtor  by  the  trus- 
tee is  not  forbidden  by  law,  yet  *if  lie  be  permitted,  as 
their  agent,  to  use  and  control  the  assigned  effects  in  a 
manner  wholly  inconsistent  with   the  purposes  of  the 

'  Pcttibone  v.  Stevens,  15  Conn.  19;  38  Aui.  Dec.  57. 


§  14G        rKRSONAT.  rUOPERTY   SUBJECT  TO  EXECUTION.  368 

trust,  and  as  liis  own.  it.  w  ill  l»t'  rvidtMun^  iliat  the  as- 
si'j^ninont  was  nt^t  niado  in  u;(>i)(l  I'aith.'  Hnia-ill  on 
Assi<;nnionts.  17  1;  Smith  r.  Seavitts,  10  Ala.  D'J,  105. 
The  lair  anil  natural  inference  deilucible  from  the  evi- 
dence is,  that  the  dealing  of  the  jiarties  with  the 
i^oods  after  the  assipjnmcnt  was  consonant  with  their 
intention  and  private  understandini^  at  the  time  of 
making  it;  and  that  it  was  intended  not  onl}'  to  se- 
cure the  preferred  creditors,  and  those  who  had  in- 
curred liability  as  sureties  of  the  assignor,  but  also  to 
secure  to  the  assignor  himself  certain  benefits  out  of 
the  property  assigned,  to  the  hindrance  of  other  cred- 
itors in  the  enforcement  of  their  rights.  That  such  a 
purpose  will  render  the  deed  fraudulent  and  void  as  to 
the  deferred  creditors,  docs  not  admit  of  question."^ 
It  must,  however,  be  admitted  that  there  are  cases  in- 
consistent with  this  general  rule,  and  which  have  sup- 
ported reservations  for  the  advantage  of  the  assignor. 
The  rule  itself  is  not  denied.  The  exceptional  cases 
have  been  occasioned  b}^  reservations  of  trifling  value, 
or  of  so  meritorious  a  nature  that  the  court  strained 
the  law  in  their  favor.^  The  assignment  must  be  un- 
conditional, and  must  place  the  property  beyond  the 
control  of  the  debtor.  Hence  an  assignment  to  a 
trustee,  personally,  fur  his  life,  or  till  his  resignation,' 
or  with  a  power  of  revocation,*  or  with  the  right  to 

1  Linn  v.  Wright,  18  Tex.  .317;  70  Am.  Dec.  285. 

'^  Canal  Bank  v.  Cox,  G  Greenl.  ."{11.3;  Skipwith  r.  Cunningliani,  8  Leigh,  271; 
31  Am.  Dec.  012;  Kevaa  v.  Branch,  1  Gralt.  275.  The  cases  of  Murray  v. 
Riggs,  \o  Johns.  271,  and  Austin  v.  Bell,  20  Johns.  412,  11  Am.  Dec.  297,  sus- 
taining re3er\-ationd  for  the  support  of  the  deljtor'.s  family,  arc  inconsistent 
with  later  cases  in  the  same  state. 

1  .Smith  7-.  Hurst,  10  Hare,  3J;  22  L.  J.  Cli.  280;  17  Jur.  .30. 

♦  Biggs  V.  Murray,  2  Johns.  Ch.  505;  Cannon  v.  Pecljles,  4  Ired.  204;  2 
IreJ.  449;  llyslop  v.  Clark,  14  Johns.  458.  "^ 


339  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  146< 

make  loans  on  the  security  of  the  property  assigned,^ 
is  void;  for  in  each  case  tlie  debtor  attemjifts  to  with- 
draw the  property,  for  a  time,  from  his  creditors,  with 
the  privilege  of  resuming  in  the  future  his  rights  of 
ownership.  In  one  instance,  an  assignment,  with  the 
stipulation  that  the  assignees  should  hold  the  property 
for  twenty-five  days,  during  which  tlie  debtor  had  the 
privilege  of  paying  the  creditors,  and  putting  an  end 
to  the  assignment,  was  held  to  be  void;"  but  in  an- 
other instance,  under  a  similar  assignment,  the  stipu- 
lation in  favor  of  the  assio-nor  was  held  to  be  a  mere 
circumstance  for  the  consideration  of  the  jury  in  de- 
termining w^hether  there  was  any  intent  to  delay  or 
defraud  creditors.^  "Every  assignment  is  absolutely 
void  if  it  does  not  appoint  and  declare  the  uses  for 
which  the  property  is  to  be  held,  and  to  which  it  is  to 
be  applied.  A  provision  that  the  uses  shall  be  subse- 
quently declared  will  not  do.  They  must  accompany 
the  instrument,  and  appear  on  its  face,  in  order  to 
rebut  the  conclusive  presumption  of  a  fraudulent  in- 
tent, which  would  otherwise  arise."*  To  permit  the 
assignor  to  declare  subsequently  the  uses  for  wliich  the' 
property  is  to  be  held,  or  to  direct  what  preferences; 
should  be  given,  would  in  effect  allow  him  to  retain  a 
control  over  the  property  as  valuable  to  him  as  though 
lie  retained  an  interest  for  his  own  benefit  or  that  of 

'  Sheppanla  ?'.  Turpin,  3  Clratt.  373. 

3  Whallon  v.  Scott,  10  Watts,  237. 

'  Hafner  ?•.  Irwin,  1  Ircil.  490. 

*  Bump  ou  Fraudulent  Conveyances,  382;  Grover  v.  Wakcnian,  11  W'euil. 
187;  25  Am.  Dec.  024;  Harvey  v.  Mix,  24  Conn.  40G;  Burbank  r.  Hammonil,  3 
Sum.  429.  Hence  tlio  assignor  cannot  retain  tlio  right  to  designatu  tlic  order 
in  which  his  creditors  bliall  bo  paiil.  If  any  prefercncca  aro  intended,  they 
must  bo  Btatcil  and  regulated  in  tlio  assignment.  Sheldon  r.  Dodge,  4  Denio, 
221;  Brainerd  r.  Dunning,  .30  N.  Y.  214;  Strong  v.  Skiiuicr,  4  Barb.  559;. 
Sniitli  V.  Howard,  20  How.  IV.  127. 
Vol.  1.-21 


§  140         rKRSOXAL    rKOPKUTV    SLIJJIXT  TO   KXKCUTIOX.  870 

liis  family.  Witli  this  powor  lie  coukl  easily  coerce 
his  crcthtoi's  inti)  exccutiuLr  releases  or  jfraiitin'j;  other 
vahiahle  privilej^es.  Nor  can  a  power  of  this  char- 
acter i)e  coiutuled  to  the  assignee.  Wheii'  an  as- 
signment classilied  the  ereditoi's  o^  the  assij^nor,  and 
desiij^nated  the  order  in  which  they  should  be  paid, 
hut  oave  the  assiij^nee  authority  from  time  to  time, 
and  whenever  it  shall  he  lor  the  mutual  interest  of  the 
several  parties  beneficially  interested  to  depart  from 
the  order  of  payment  hereinbefore  appointed  and  di- 
rected, b}'  settling  in  full  or  in  part,  by  compromises 
or  otherwise,  any  of  the  debts  or  liabilities  specified  in 
the  schedule  hereto  annexed,  it  was  declared  void  on 
its  face,  because  there  was  apparent  therefrom  a  "de- 
sign to  hinder  and  delay  creditors  in  the  collection  of 
their  debts,  and  because"  such  a  provision,  if  toler- 
ated, would  enable  a  debtor  to  set  his  creditors  at  de- 
fiance, and  compel  them  to  bid  against  each  other  for 
his  favors,  and  would  be  virtually  vesting  him  with 
powers  which  no  one  would  suppose  he  could  in  terms 
reserve  to  himself  in  the  deed  of  assignment.^ 

The  assignment  need  not  fix  the  time  within  which 
the  trust  thereby  created  must  be  executed.  But  if  a 
time  is  specified,  it  must  be  reasonable,  —  not  so  short 
as  to  compel  a  sacrifice  of  the  property,  and  not  so 
long  as  to  indicate  an  intent  to  unreasonably  and  un- 
necessarily postpone  the  payment  of  the  debts.  Any- 
thing unreasonable  in  either  respect  is  a  badge  of 
fraud,  and  may  avoid  the  assignment.^     An  assignment 

'  Oazzain  >•.  Poj-ntz,  4  All.  .'{74;  .37  Am.  Dec.  745;  Barnliain  r.  Hempstead, 
7  Paige-,  fiiiS. 

»  Carlton  r.  BaMwin,  22  Tox.  724;  RoUins  r.  Embry,  1  Smnrles  &  M.  Ch. 
207;  Sheerer  r.  Lautzerheizer,  G  Watts,  543;  Sheppanli  v.  Turpin,  .3  Gratt. 
373;  Shearer  r.  Lohin,  211  All.  703;  V.mghan  r.  Evans,  i  Hill  Cli.  414;  Rcp- 
plier  V.  Orrich,  7  Ohio,  i>art  2,  p.   240;  Knight  v.  Packer,  1  Bcasl.  214;  Far- 


371  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §146 

authorizing  the  trustees  to  sell  on  credit  is  fraudulent 
'pcr  se  in  some  states/  iraudulcnt  prhna  facie  in  others,^ 
and  prima  facie  valid  in  others.^  A  difference  of  opin- 
ion exists  respecting  the  signification  of  certain  phrases 
frequently  employed  in  assignments,  as  where  the  as- 
signee is  directed  to  sell  the  property  "upon  such  terms 
and  conditions  as  in  his  judgment  may  appear  best  and 
most  for  the  interest  of  the  parties  concerned."  Per- 
haps the  better  opinion  is,  that  these  words  do  not 
authorize  a  sale  upon  credit,  because  it  must  have  been 
intended  that  the  discretion  conferred  should  be  exer- 
cised within  legal  limits,  and  that  they  no  more  sanc- 
tion a  sale  upon  credit  than  they  do  any  other  illegal 
mode  of  disposing  of  property;  such,  for  instance,  as  a 
sale  by  lottery  or  raffle.* 

So  a  marked  diversity  of  opinion  exists  in  regard  to 
the  validity  of  assignments  which  stipulate  that  the 
proceeds  shall  be  divided  among  those  creditors  only 
who  shall  execute  a  release  of  all  demands  against  the 

quharson  v.  McDonald,  2  Ileisk.  404;  Hafncr  v.  Irwin,  1  Ired.  490;  Hardy  v. 
Siiupsou,  1.3  Ired.  1.38;  Rundlett  v.  Dole,  10  N.  H.  458;  Bennett  v.  Union 
Bink,  5  Humph.  G12;  Adlum  v.  Yard,  1  Rawlc,  1G3;  18  Am.  Dec.  608; 
Mitchell  r.  Real,  8  Yerg.  134;  29  Am.  Dec.  108;  Ward  v.  Trotter,  3  T.  B.  Men. 
1;  Johnson  v.  Thwe^ttt,  18  Ala.  745. 

>  Barney  v.  C.riilm,  2  N.  Y.  3G6;  Nicholson  r.  Leavitt,  G  N.  Y.  510;  87 
Am.  Dec.  499;  Dunham  v.  Waterman,  17  N.  Y.  17;  72  Am.  Dec.  40G;  Bowen 
V.  Parkhurst,  24  111.  2(51 ;  Keep  v.  Sanderson,  12  Wis.  3G3;  2  Wis.  42;  GO  Am. 
Dec.  404;  Porter  v.  Williams,  9  N.  Y.  142;  59  Am.  Dec.  519;  Truitt  v.  Cald- 
■well,  3  Minn.  .3G4;  74  Am.  Dec.  7G4;  lulocs  v.  Am.  Ex.  B;iuk,  11  Md.  173;  G9 
Am.  Doc.  190;  Jones  v.  Sycr,  .52  Md.  21G;  36  Am.  Kcp.  3GG. 

»  Billings  V.  Billings,  2  Cal.  113;  .56  Am.  Dec.  319. 

'  Grimill  r.  A<lams,  1 1  Humph.  28;');  .Siiackelfnrd  r.  Bank  of  Mobile,  22  Ala. 
238;  Al)ercro:nbic  r.  Bradford,  16  Ala.  5(R);  Hoffman  v.  Mackall,  5  Oiiio  St. 
124;  Gl  Am.  Dec.  G37;  Conkling  r.  Coorod,  6  Ohio  St.  611;  Bahlwin  f.  Peet, 
22  Tex.  712;  75  Am.  Doc.  806;  Borry  r.  Haydcn,  7  Iowa,  472. 

*  Kellogg  V.  Slawson,  11  N.  Y.  302;  Nye  r.  Van  Husan,  6  Mich.  329;  74 
Am.  Dec.  GOO;  Booth  v.  McNair,  14  Mich.  22;  Wliipplo  r.  Pope,  33  111.  336. 
Cnnira:  HutchiosoQ  r.  Lord,  1  WLs.  28G;  GO  Am.  Dec.  381;  Sumner  v.  Hicks,  2 
Black,  532. 


§  14G        rrnSOXAL  rROPERTY   subject  to  execution.  37'2 

assignor.  This  stipulation  is  tloarly  a  n>sorvati(>n  in 
favor  of  till'  clrl)tnr,  as  it  jirovidos  tor  his  (.'xonoraf  ion 
iViMU  li^yal  liahility.  It  is  an  atti-njittcd  rocrciim  of  the 
creditors;  and  is  not  a  full  and  unconditioii;d  i'(  lin(|uish- 
mcnt  of  tho  j>n>[H>rty  for  their  henclil.  If  allowed  to 
stand,  it  must  neeessarily  cnahle  debtors  to  compel 
creditors  to  compromise  their  claims,  because  it  with- 
draws property  from  the  reach  of  execution,  and  says 
to  the  creditors,  You  shall  not  obtain  relief,  except  on 
such  terms  as  the  debtor  has  [)ro})osed.  By  a  majority 
of  the  authorities,  such  assiLimnents  arc  declared  to  be 
fraudulent  per  sc;^  but  by  quite  a  respectable  minority, 
they  are  asserted  to  be  good  and  valid,  if  not  otherwise 
objectionable."  The  known  character  and  circum- 
stances of  the  assignee  may  be  such  as  to  clearly  dis- 
qualify him  from  performing  the  duties  of  his  trust. 
If  so,  his  selection  indicates  an  intent  adverse  to  tlie 
interests  of  the  creditors,  and  is,  at  least,  prima  fade 

*  Hyslop  r.  Clarke,  14  Johns.  458;  Wakeman  ?•.  Grovur,  4  Paige,  23;  SpauUl- 
ing  r.  Strong,  32  Barb.  235;  llafiicr  r.  Irwin,  1  Iroil.  41)0;  RoI)ins  7-.  Embry,  1 
Smeiles  &  M.  Ch.  208;  Woolsey  r.  Urner,  Wright,  00(5;  Swearingen  v.  Slicer, 
5  Mo.  241;  Brown  r.  Knox,  G  Mo.  302;  Ingrahaui  v.  Wlieelur,  G  Conn.  277; 
Howell  r.  Edgar,  3  Scam.  417;  RamsJell  v.  Sigurson,  2  Oihn.  78;  ^lalcom  v. 
Hodges,  8  Md.  418;  Alhert  v.  Winn,  7  Gill,  44G;  Bridges  v.  Hindes,  IG  Md. 
104;  The  Watchman,  Ware,  232;  Pearson  v.  Crosby,  23  Me.  2G1;  Vose  r.  Hol- 
comb,  31  Me.  407;  Kurd  v.  Sibby,  10  N.  H.  108;  34  Am.  Dec.  142;  Atkinson 
tr.  Jordan,  5  Ohio,  295;  24  Am.  Dec.  281;  Conkling  v.  Carson,  11  111.  503;  Graves 
r.  Roy,  13  La.  454;  33  Am.  Dec.  oGS;  Miller  r.  Conklin,  17  Ga.  430;  Hender- 
son V.  Bliss,  8  Ind.  100;  Butler  r.  Jaffray,  12  Ind.  504;  Gimell  v.  Adams,  11 
Humph.  283;  Wilde  v.  Rawlins,  1  Head,  .34;  Wilson's  Accounts,  4  Pa.  St.  4:J0; 
45  Am.  Dec.  701. 

»  To<ld  r.  Bucknam,  11  Me.  41;  Borden  v.  Sumner,  4  Pick.  205;  IG  Am. 
Dec.  338;  Nostrand  v.  Atwood,  19  Pick.  281;  Halsuy  r.  Whitnuy,  4  M.won, 
406;  Lippincott  r.  Barker,  2  Binn.  174;  4  Am.  Dec.  433;  Livingston  v.  Bell,  3 
Watt«,  198;  Bayne  v.  Wylie,  10  Watts,  309;  Skipwitli  v.  Cunningham,  8  Leigh, 
271;  31  Am.  Dec.  042;  Niolon  v.  Douglas,  2  Hill  Ch.  443;  30  Am.  Dec.  .'308; 
Le  Prince  r.  Guillemot,  1  Rich.  E<i.  187;  Brashcar  v.  West,  7  Pet.  <)08;  Pear- 
point  r.  Graham,  4  Wash.  C.  C.  2.32;  Lea's  Appeal,  9  Pa.  St.  504;  Hall  v. 
Dcui.Hon,  17  Vt.  310;  Spencer  v.  Jackson,  2  K.  I.  35;  Gordon  v.  Cannon,  18 
Gratt.  387. 


373  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  147 

evidence  of  fraud.  Among  the  well-established  dis- 
qualifications of  assignees  are  ''non-residence/  blind- 
ness,^ want  of  learning/  conflicting  interests,*  and 
insolvency."^ 

§  147.  Necessity  of  Change  of  Possession  Accom- 
panying Transfer  of  Title.  —  In  many  of  the  states  a 
sheriti'  may  levy  upon  personal  property  under  an  exe- 
cution against  a  vendor  thereof,  if  he  finds  such  prop- 
erty in  the  possession  of  such  vendor,  unless  there  has 
first  been  an  open  and  notorious  delivery  to  the  ven- 
dee, and  after  such  delivery  and  notoriety,  the  property 
has,  in  good  faith,  been  returned  to  the  custody  of  the 
vendor.  The  statute  of  13  Elizabeth,  c.  5,  declared 
that  every  feoflPment,  grant,  alienation,  conveyance  of 
any  lands,  tenements,  hereditaments,  goods,  and  chat- 
tels, and  every  bond,  suit,  judgment,  and  execution 
made  to  delay,  hinder,  or  defraud  creditors,  shall,  as 
against  the  person  delayed  or  defrauded,  be  utterly 
void.  This  statute  does  not  purport  to  modify  the 
rules  nor  the  effect  of  evidence;  nor  docs  it  declare 
that,  from  the  existence  of  any  particular  fact,  an 
infent  to  hinder,  delay,  or  defraud  creditors  shall  be 
conclusively  presumed.  But  in  the  forty-fourth  year 
of  the  reign  of  Elizabeth,  an  information  against 
Twyne,  for  making  and  publishing  a  fraudulent  gift  of 
goods,  was  lieard  in  the  star-chamber.  One  Pierce, 
being  possessed  of  goods  and  chattels,  made  in  secret 

»  Cram  v.  Mitchell,  1  Sand.  Ch.  251;  Cox  v.  Piatt,  32  Barb.  12G;  19  How. 
Pr.  121. 

'Cram  v.  Mitcli.-ll,  )  Saii.l.  Ch.  251. 

•Cram  r.  Mitchell,  I  Sariil.  Ch.  2o\;  f  Juerin  r.  Hunt,  6  Minn.  375. 

*  Hays  r.  ihmm-,  3  Stock.  84. 

*  Angell  J-.  Koserihurg,  12  Mich.  241;  Browning  v.  Hart,  0  Birh.  91;  Rod 
V.  Emury,'8  Paige,  417;  35  Am.  Djc.  720;  Coauab  t>.  Sedgwick,  I  Harb.  211; 
Carrio  v.  Hart,  3  Sand.  Ch.  35G. 


§  147         PERSONAL  TRdrERTY   SURTECT  TO   I'.XECUTION.  374 

a  Ljoiioral  dood  of  j^llt  of  all  his  <;(Hx1s  and  cliattols  to 
Twvno,  in  considiM-ation  of  the  release  of  aiiteceilent 
iiulehtetlness.  rien"e,  however,  eonlimird  in  posses- 
sion, treatinLi:  the  projuTty  in  all  respeets  as  thoUL;h  it 
were  his  own.  C.  another  ereditor  oi'  Vieree,  look  out 
ajkri  j\wia.-<,  ami  was  proeeedin;j;  to  levy,  when  he  and 
tlie  sheriif  were  foreihly  resisted  hy  Twyne,  who  claimed 
the  L^t)ods  uii(K>r  his  n^ift  from  Pierce,  "and  whether 
this  gift,  or  the  whole  matter,  was  fraudulent  and  of 
no  effect,  by  the  said  act  of  13  Elizabeth,  or  not,  was 
the  qucsti<Mi.  And  it  was  resolved  by  Sir  Thomas 
Egerton,  lord-keeper  of  the  great  seal,  and  by  the 
chief  justices  Popham  and  Anderson,  and  the  whole 
court  of  star-chaml)er,  that  this  gift  was  fraudulent 
within  the  statute  of  13  Elizabeth.  And  in  this  case 
divers  points  were  resolved:  — 

"1.  That  this  gift  had  the  signs  and  marks  of  fraud, 
because  the  gift  is  general,  without  exception,  of  his 
apparel,  or  anything  of  necessity;  for  it  is  commonly 
said,  quod  dolosus  vcrsatur  in  gcncralibus. 

"2.  He  continued  in  possession,  and  used  them  as 
his  own;  and  b}'  reason  thereof  he  traded  and  trafficked 
with  others,  and  defrauded  and  deceived  them. 

"  3.  It  was  made  in  secret,  et  dona  clandestina  sunt 
semper  snspiciosa. 

**4.    It  was  made  pending  the  writ. 

"5.  Here  was  a  trust  between  the  parties;  for  the 
donor  possessed  all,  and  used  them  as  his  proper  goods, 
and  fraud  is  always  appareled  and  clad  with  a  trust,  and 
trust  is  the  cover  of  fraud. 

"  6.  The  deed  contains  that  the  gift  was  made  hon- 
estly, truly,  and  bona  fide;  et  clausulx  inconsuet  semper 
indacuni  suspicloncni. 


375  PERSONAL   PROPERTY  SUBJECT  TO  EXECUTION.        §147 

"Secondly,  it  was  resolved  that,  notwithstanding 
here  was  a  true  debt  to  Twyiie,  and  a  good  considera- 
tion of  the  gift,  yet  it  was  not  within  the  proviso  of  the 
said  act  of  13  Elizabeth,  by  which  it  was  provided  that 
said  act  shall  not  extend  to  any  estate  or  interest  in  the 
lands,  etc.,  goods,  or  chattels,  made  on  good  considera- 
tion, and  bona  fide;  for  no  gift  shall  be  deemed  to  be 
bona  fide  within  said  proviso  which  is  accompanied  with 
any  trust.  As,  if  a  man  be  indebted  to  live  several 
persons,  in  several  sums  of  twenty  pounds,  and  hath 
goods  of  the  value  of  twenty  pounds,  and  makes  a  gift 
of  all  the  goods  to  one  of  them,  in  satisfaction  of  the 
debt,  but  there  is  a  trust  between  them,  that  the  donee 
shall  deal  favorably  with  him  in  regard  to  his  poor 
estate,  citlier  to  permit  the  donor,  or  some  other  for 
him  or  for  his  benefit,  to  use  or  have  possession  of 
them,  and  is  contented  that  he  shall  pay  him  his  debt 
when  he  is  able,  this  shall  not  be  called  bona  fide  within 
said  proviso;  for  the  proviso  saith,  on  a  good  considera- 
tion and  bona  fide;  so  a  good  consideration  does  not 
suffice  if  it  be  not  also  bona  fide.  And  therefore, 
reader,  when  any  gift  shall  be  to  you,  in  satisfaction  of 
a  deljt,  by  one  who  is  indebted  to  others  also :  first,  let 
it  be  made  in  a  public  manner  and  before  the  neighbors, 
and  not  in  private,  for  secrecy  is  a  mark  of  fraud;  sec- 
ond, let  tlie  goods  and  chattels  be  appraised,  by  good 
people,  to  the  very  value,  and  take  a  gift  in  particular 
in  satisfaction  of  your  del)t;  third,  immediately  after 
the  gift,  take  possession  of  them,  for  continuation  of 
possession  in  the  donor  is  a  sign  of  trust." ' 

In  this  case,  the  continuance  of  the  vendor's  i)o.sses- 
sion  was  certainly  one   of  the   most  material  of  the 

'  TwyncH  L'aac,  3  Coke,  80;  )  Smith's  Lead.  C;ia.  1. 


8147        PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.         376 

j^frouiuls  upon  wliioh  tlio  court  roaclKHl  the  rotu'lusion 
that  tho  sale  was  iVauduK-ut.  and  thtrrloic  void  as 
against  <^thi'r  (T(>dit«>rs.  It  docs  not,  liowrver,  ap})car 
clrarlv  tliat.  this  oroiuid  aloiu-  could  have  |tro(hiced 
the  siinio  conviction  as  w  hi'U  aided  by  the  other 
grounds.  Possession  was  Jicro  characterized  as  a  f^vni 
of  tVaud  ;  hut  it  was  not  asserted  to  l)e  an  induhitahlc 
si«j^n.  Whether  justilialtly  or  not,  T\\  vne's  Case  came 
to  he  regarded  as  authority  tor  the  doctrine,  that,  when 
an  ahs(»hite  sale  lias  heen  made,  tho  continuance  of  the 
vendor  in  possession  of  the  «j^ooils  sold  is  fraudulent  j>cr 
se,  rendering  the  sale  void  as  to  cicditors,  and  the  prop- 
crtv  liable  to  seizure  and  sale  under  execution  against 
the  vendor.  This  doctrine  received  the  support  of 
some  subsequent  English  adjudications;^  but  in  that 
country,  it  was  afterward  clearly  displaced  by  the 
other  doctrine,  that  "the  question  of  fraud  or  no  fraud 
is  one  for  the  consideration  of  the  jury";  that  the  con- 
tinuance of  the  vendor  in  possession  of  the  property 
sold  is  to  be  treated  as  a  very  material  fact  in  such 
consideration,  but  not  as  requiring  a  verdict  of  fraud 
where  the  jury  is  satisfied  that  the  transaction  was 
bona  fide,  and  without  any  intent  to  hinder,  delay,  or 
defraud.'  But  by  the  act  of  17  and  18  Victoria,  c.  3G, 
"  for  preventing  frauds  upon  creditors  by  secret  bills  of 

»  Eilwar.ls  r.  Harbeii,  2  Term  Rep.  587;  Reeil  v.  Blades,  5  Taunt.  212;  Paget 
r.  Perchar.1,  1  Eip.  205;  Wordall  v.  Smith,  1  Camp.  332;  Shears  v.  Rogers,  3 
Bam.  &  A.lol.  303. 

'  Martinlale  r.  Booth,  3  Barn.  &  Adol.  498;  Carrr.  Burdiss,  5  Tyrw.  310; 
1  Cromp.  M.  &  R.  782;  Latimer  r.  B^taon,  4  Barn.  &  C.  052;  7  Dowl.  &  R.  lOu; 
Kidd  r.  Rawlinson,  2  Bo*.  &  P.  59;  3  E^p.  52;  Pennell  v.  Dawson,  18  Com.  B. 
aV.;  Hale  r.  Met.  S.  ().  Co.,  28  L.  J.  Cii.  777;  7  Week.  Ktp.  .SI (J;  4  Drew.  492; 
Watkins  r.  Birch,  4  Taunt.  823;  Cole  v.  l>avie.-4,  1  Ld.  Raym.  724;  Macdona  r. 
Swiaey,  8  Irish  Ch.  L.  Rep.  73;  Storcr  v.  Hunter,  3  Barn.  &  C.  308;  5  Dowl. 
ft  R.  240;  Ea»twoo<i  v.  Browne,  Rusa.  ft  M.  312;  Hunter  r.  Corbett,  7  U.  C. 
g   B.  75. 


377  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §148 

sale  of  personal  chattels,"  every  bill  of  sale  of  chattels, 
whether  absolute  or  conditional,  whether  subject  to  or 
free  froru  trusts,  must  be  filed  with  a  public  ofiScer, 
named  in  the  act,  within  tvrenty-one  days  after  the 
making'  or  giving  of  such  bill  of  sale,  or  it  will,  in  favor 
of  creditors,  be  rcirarded  as  void  as  to  all  chattels  still  in 
possession  of  the  vendor. 

§  148.  Rule  as  to  Chanp^e  of  Possession  in  Majority 
of  the  United  States.  —  Mr.  Parsons,  in  his  work  on 
contracts,  says  :  "  There  seems  now  to  be  a  tendency  to 
consider  the  question  of  fraud  as  a  question  of  fact,  in 
relation  to  which  the  circumstance  of  possession  is  of 
great  weight,  though  not  absolutely  conclusive.  The 
Cjuestion  is  thus  taken  from  the  court,  who  should  infer 
it  from  a  single  fact,  and  is  left  to  the  jury,  who  may 
consider  all  the  facts,  and  determine  how  far  the  fact 
of  possession  is  explained  and  made  consistent  with  an 
honest  purpose'V  3,nd  he  further  states,  in  liis  foot- 
note, that  "although  few  questions  in  the  law  present 
a  greater  conflict  of  authorities  than  this,  we  believe 
that  reason,  analogy,  and  the  current  of  a  modern  au- 
tiiority,  both  English  and  American,  support  the  prin- 
ciple laid  down  iu  tlic  text."  While  these  remarks  are 
substantially  correct,  the  current  of  the  American  au- 
thority tends  in  the  direction  indicated  with  less  force 
than  ^Ir.  Parsons  seems  to  realize.  In  fact,  the  cur- 
rent of  these  authorities,  like  that  of  some  of  our  own 
mightiest  rivers,  so  frequently  shifts  from  one  side  to 
the  other,  and  is  so  obscured  by  the  turbid  matter 
througli  wliich  it  llr)ws,  and  of  which  it  is  a  |)art,  tliat 
its  course  can  hardly  be  descried  by  the  most  careful 
observer;    and   when    ascertained,  must   constantly  bo 

'  1  PanoDB  OD  CoDtrocts,  4th  cd.,  442. 


§  14S         PERSON  AT.   ITvOrKliTY   SURTECT  TO  EXECUTION.  378 

vorifhHl  l>y  luw  i)l)sorvations.  If  tlu'  American  dcfis- 
Idiis  on  this  8iil))ot't  ucro  to  lu-  raii'^cd  in  o[)jt(i.NiiiM-  lines, 
it  would  l>o  touiid  that  neither  side  tar  outniunherod 
the  other;  while  prohahly  a  majority  of  the  jurists  of 
whom  Americans  have  felt  most  proud  would  be  found 
to  liave  indorsed  the  opinions  wliii  h  arc  now  retj^arded 
as  deviatin;4  from  the  current  of  authority.  T\\c  law 
as  stated  hy  ^Ir.  l^arsons  in  the  ahove  (piotation  i)rc- 
vails  in  Alahama/  Arkansas,"  and  (Jeori^ia.''  In  Indi- 
ana a  different  rule  was  at  first  laid  down  in  i-cfercnce 
to  m(irti]jages;^  i)ut  was  soon  after  modiiietl/'  and  was 
next  followed  hy  a  case  involving  the  cli'ect  of  posses- 
sion retained  hy  a  vendor  after  an  absolute  sale.  Wc 
are  not  sure  that  we  understand  the  legal  principles 
uplield  by  this  last  decision,  but  wc  believe  that  the 
c<jurt  intended  to  liold  tliat  fraud  was  a  question  of 
fact  for  the  jury,  notwithstanding  the  want  of  a  change 
of  possession."  The  matter  is  now  set  at  rest  by  a 
statute,  under  which  a  sale,  not  accompanied  by  a 
change  of  possession,  is  presumed  to  be  fraudulent, 
"until  it  shall  be  made  to  appear  that  the  same  was 
made    in    good    faith." ^      In    Maine,®  Massachusetts,' 

■•  Mayer  r.  Clark,  40  Ala.  259;  Upson  r.  Raifonl,  29  Ala.  19.');  Mullanl  v. 
Hall,  24  Ala.  220;  N'ol)le  r.  Coleman,  10  Ala.  77. 

*  Cocke  r.  Cliapinan,  2  Eng.  197;  44  Am.  Dec.  530;  Field  v.  Strong,  2  Eng. 
209;  Ocorge  v  Norris,  2.3  Ark.  128. 

••  Henuiig  r.  Townsend,  0  Ga.  103;  50  Am.  Dec.  318;  Ector  v.  Townsend,  29 
Ga.  443;  Collins  r.  Taggart,  51  Ga.  357. 

*  Jordan  r.  Turner,  3  Blackf.  309. 

»  Watson  r.  Williams,  4  Blackf.  20;  28  Am.  Dec.  30. 

•  Foley  V.  Knight,  4  Blackf.  420. 
'  Kane  r.  Drake,  27  I  ml.  .32. 

»  Reed  v.  Jewett,  5  (Jreenl.  90;  Ulmer  r.  Hills,  8  Greenl.  326;  Cutter  v. 
CopelanJ,  18  .Me.  127;  Clark  v.  French,  23  Me.  221;  39  Am.  Dec.  018. 

•  Brookn  r.  Powers,  15  Maas.  244;  8  Am.  Dec.  99;  Mardin  v.  Bahcock,  2 
Met.  99;  Adani.s  r.  Wheeler,  10  Pick.  199;  .Matrick  v.  Linlield,  21  Pick.  325; 
Ingalli  r.  Herrick,  108  Mass.  351;  11  Am.  Pvep.  300;  Briggu  v.  Parkman,  2 
Met.  258;  37  Am.  Dec.  89. 


379  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  14S 

Michigan/  and  Mississippi,"  the  rule  mentioned  b}^ 
Mr.  Parsons  is  in  force.  Such  is  also  the  case  in  New 
Jersey,^  the  case  of  Chuniar  v.  Vv^ood,  1  Halst.  155, 
which  established  a  contrary  doctrine,  having  been 
overruled.  In  XeLraska,  the  vendee,  notwithstanding 
his  want  of  possession,  may,  under  section  70,  chapter 
43,  of  the  Revised  Statutes,  be  permitted  to  show  that 
the  sale  was  made  in  good  faith,  and  without  intent  to 
defraud  creditors.*  New  York  formerly  gave  her  ad- 
herence to  the  rule  of  the  earlier  English  cases,  main- 
taining that  possession  by  the  vendor,  in  ordinary 
circumstances,  after  an  absolute  sale,  gave  rise  to  an 
indisputable  presumption  of  fraud;  but  under  the  in- 
fluence of  statutory  provisions,  she  now  regards  such 
possession  as  ijrima  facie  evidence  of  fraud,  liable  to 
rebuttal.^  North  Carolina °  and  Ohio^  have  always 
maintained  the  rule  finally  reached  in  New  York. 
Tennessee  at  first  denied,*^  but  subsequently  adopted, 
the  same  rule.^  In  Hudnal  v.  Wilder,  4  McCord,  30G  ; 
17  Am.  Dec.  744,  the  court  said:  "A  vendor  continu- 
infr  in  possession  is  regarded,  as  to  creditors  or  sub- 
sequent purchasers,  as  the  owner,  against  the  most 
solemn,  unconditional  deed  to  a  ho)ia  fide  purchaser  not 

*  Jackson  v.  Deau,  1  Doug.  517;  Oliver  v.  Eaton,  3  Mich.  114;  Moliter  r. 
Robinson,  40  Mich.  200. 

»  Comstock  V.  Rayfor.l,  12  Smedes  &  M.  3G9. 

»  Sherron  v.  Humphreys,  2  Green,  217;  Runnyon  r.  Goshon,  1  Bcasl.  8G; 
Miller  r.  Paucoa.st,  29  N.  J.  L.  250. 

*  I'ylo  V.  Warr.-n,  2  Nob.  241;  Robinson  v.  Uhl,  0  Nub.  328. 

*  Bi.ssell  r.  HoiikiiiH,  3  Cow.  100;  1.")  Am.  Dec.  259;  Thompson  v.  Blanchard, 
4  N.  Y.  :i03;  <;ri.swol.l  r.  Shtl.lon,  4  N.  Y.  580. 

*  Howell  V.  Elliott,  1  Dev.  7t);  Rea  v.  Alexanilcr,  5  Ircil.  044. 

'  RogePH  r.  Dare,  Wright,  1.30;  liurbridgo  v.  Seely,  Wright,  359. 

"  Ilagan  r.  Keuncily,  Over.  91. 

•Callen  v.  Thompson,  3  Ycrg.  475;  24  Am.  l>cc.  587;  Miuicy  v.  Killough, 
7  Yerg.  440;  Wiley  v.  I.Kiuhloo,  8  Humph.  717;  Richmond  r.  Crmlup,  Meigs, 
581;  33  Am.  Dec.  104;  Shaddon  v.  Knott,  2  .Swan,  58;  58  Am.  Dec. -03. 


§143        PERSONAL   PUOrEUTY   SUBJECT  TO   KXEc'UTIOX.  :?S0 

in  jiossossion.  These  arc  tlio  settli'tl  rules  of  tlu>  roui- 
nmn  law,  to  whu-li  the  coiniiioii  stMise  ol'  tho  cominunity 
yifkls  a  ivady  assent,  iVoiu  the  oitvious  tendency  to 
Iruuil  to  whieli  a  contrary  ilocti'ine  would  lead."  Not- 
^vitllstandinLC  tliis  emphatic  lani^aiajj^e,  other  cases  in 
the  same  state  I'ully  <>stal>lish  that  tlie  posfecasion  of  a 
vendor  after  the  sale  is  lu)  more  than  prima  facie  evi- 
dence of  fraud,'  exce[)t  when  the  sale  was  made  in  con- 
sideration of  a  \n'iov  indebtedness,  in  which  case  it  is 
conclusive  evidence,"  unless  the  retention  of  possession 
is  under  a  contract  of  hirin-j*  made  in  <iOod  faith  be- 
tween  the  vender  anil  vendee.^  Texas,*  Wisconsin,^ 
and  Virginia "^  also  support  the  rule  that  possession  is 
never  conclusive  evidence  of  fraud;  though  in  the  last- 
named  state  the  contrary  doctrine  was  frequently  and 
uniformly  upheld  for  nearly,  if  not  fully,  half  a  century/ 
In  Kansas^  and  in  Oregon,^  statutes  have  been  enacted 
under  which  sales  of  personal  property,  if  not  acconi- 

>  Blake  r.  Jones,  1  Bail.  Eq.  141;  21  Am.  Dec.  530;  Kiel  v.  Mitchell,  1 
Nott  &  McC.  2.U;  9  Am.  Dec.  70l';  Terry  v.  Belcher,  1  Bail.  508;  Cox  v.  Mc- 
Bee,  1  Speers,  10;  Beck  v.  Massey,  11  Rich.  14;  Smith  v.  Henry,  2  Bail.  118. 

»  Smith  r.  Henry,  1  Hill  (S.  C),  IG;  Maples  r.  Maples,  Rice  Eq.  300;  An- 
derson V.  Fuller,  1   McMull.  E<i.  27;  2G  Am.  Dc^o.  290. 

»  Prin-lc  r.  Rliamc,  10  Rich.  72;  07  Am.  Dec.  509. 

♦Bryan  r.  Kelttjn,  1  Tex.  415;  Morgan  r.  Tlie  Ilepublic,  2  Tex.  279;  Mills 
V.  Walton,  19  Tex.  271;  Van  Hnok  v.  Walton,  28  Tex.  59;  Thornton  r.  Tandy, 
39  Tex.  544. 

*  Smith  r.  Welch,  10  Wis.  91;  Grant  v.  Lewis,  14  Wis.  487;  80  Am.  Dec. 
785;  Livingston  r.  Littell,  15  Wis.  221;  BuUis  r.  Borden,  21  Wis.  130. 

'  Davis  r.  Turner,  4  Oratt.  422;  Forkner  r.  Stuart,  G  Gratt.  197. 

'  Cnaybom  v.  Hill,  1  Wash.  (Va.)  177;  1  Am.  Dec.  402;  Alexander  v.  De- 
neale,  2  Munf.  341;  Robertson  r.  Ewell,  3  Munf.  1;  Glasscock  v.  Batten,  6 
Rand.  78;  Tavener  r.  Robinson,  2  Rob.  (Va.)  280;  Tiiomas  r.  Sosscr,  5  Munf. 
28;  Fitzhu^h  r.  Anderson,  2  Hen.  &  M.289;  Williamson  r.  Farley,  Gilmer,  15; 
Land  r.  Jeffries,  5  R.ind.  211;  Burchard  r.  Wright,  11  Leigh,  403;  Mation  v. 
Bonil,  9  Leigh;  181;  33  Am.  Dec.  243. 

»  Wolfley  r.  Rising,  8  Kan.  301. 

•  Moore  r.  Floyd,  Laws  ami  DucisioDS  of  Oregon,  1672,  p.  .320;  McCully  ». 
Swackbamcr,  G  Or.  438. 


3S1  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  149 

panied  by  actual  and  continued  change  of  possession, 
are  deemed  void  against  purchasers  or  creditors  with- 
out notice,  until  shown  to  have  been  made  in  good  fiuth, 
and  for  a  sufficient  consideration.  Before  the  passage 
of  this  statute,  a  different  rule  prevailed  in  the  last- 
named  statc.^  Rhode  Island  seems  to  have  adopted  a 
rule  similar  to  that  embraced  in  the  statutes  of  Kansas 
and  Oregon.  The  adoption,  however,  was  judicial  in- 
stead of  legislative,  the  supreme  court  of  the  state 
having  accepted  as  law  the  views  expressed  in  Parsons 
on  Contracts." 

§  149.  States  wherein  Want  of  Change  of  Posses- 
Bion  is  per  Se  Fraudulent.  —  We  shall  now  notice  the 
decisions  of  the  American  courts  which  arc  opposed  to 
the  doctrines  mentioned  in  the  preceding  section.  Ham- 
ilton V.  Russell,^  determined  in  the  supreme  court  of  the 
United  States,  is  a  Icadino"  case.  Mr.  Chief  Justice 
Marshall  delivered  tlie  opinion  of  the  court,  as  follows: 
**0n  the  4th  of  January,  1800,  Robert  Hamilton  made 
to  Tliomas  Hamilton  an  absolute  bill  of  sale  for  a  slave 
in  the  bill  mentioned,  which,  on  the  14th  of  April, 
1801,  was  acknowledged  and  recorded  in  the  court  of 
the  county  in  which  he  resided.  The  slave  continued 
in  possession  of  the  vendor;  and  some  short  time  after 
tlic  bill  of  sale  was  recorded,  an  execution  on  a  judg- 
ment obtained  against  the  vendor  was  levied  on  the 
slave,  and  on  some  other  personal  property,  also  in  the 
possession  of  the  vendor.  In  July,  1801,  Thomas 
Hamilton,  the  voalcc,  brought  trespass  against  the 
defendant  Russell,  by  whose  execution  and  by  whose 

'  Monroe  r.  Hiiswy,  1  Or.  188;  IT)  Am.  Dec.  552. 
'  Aiitlioiiy  V.  \VliL'aU)U8,  7  K.  I.  4U0. 
*  1  (  rancli,  WJ. 


§  H9        PERSONAL  PROPERTY  SUWElT  TO   EXEPrTION.  382 

direction  the  property  had  hccn  soizinl;  and  at  the 
trial.  i\\c  co\u\sv\  lor  tht^  drtliulant  moved  tlu*  court  to 
instnu't  the  jurv  that  W  i\\v  slave  (Io()iv.;i>  roinained 
in  tho  p()ssossi«iii  of  the  viudur  hy  llio  consent  and  per- 
mission o(  the  vc!i(h'r,  and  if  hy  snch  consent  and 
permission  tlu^  vendor  continued  to  exercise  acts  of 
ownership  over  him,  the  vendee  could  not  under  such 
cireunistances  protect  such  slave  from  tlie  execution 
t»f  the  defendant.  The  court  gave  the  instruction  re- 
quired, to  which  a  hill  of  exceptions  was  taken.  The 
act  of  asseinhly  which  tjfoverns  the  case  appears,  as 
far  as  respects  fraudulent  coiiV(>yances,  to  he  intended 
io  he  co-extensive  with  the  acts  of  1:1  and  -7  Eliza- 
beth, and  those  acts  are  considered  as  only  declaratory 
of  the  principles  of  the  common  law.  The  decisions  of 
the  English  jud^jjes,  therefore,  a[iply  to  this  case. 

**Iu  some  eases  a  sale  of  a  chattel,  unaccompanied  by 
the  delivery  of  possession,  appears  to  have  been  con- 
sidered as  an  evidence  or  a  badge  of  fraud,  to  be  sul)- 
mitted  to  the  jury,  under  direction  of  the  court;  and 
not  as  constituting  in  itself,  in  point  of  law,  an  actual 
fraud  which  rendered  the  transaction  as  to  creditors 
entirely  void.  Modern  decisions  have  taken  this  ques- 
tion up  upon  principle,  and  have  determined  that  an 
unconditional  sale,  where  the  possession  does  not  ac- 
company and  follow  the  deed,  is,  with  respect  b) 
creditors,  r>n  the  sound  construction  of  the  statute  of 
Elizalx'th,  a  fraud,  and  should  be  so  determined  by 
the  court.  The  distinction  the}'  have  taken  is  between 
a  deed  purporting  on  its  face  to  be  al».solute,  so  that 
the  separation  of  the  possession  from  the  tith-  is  incom- 
patible with  the  deed  itself,  and  a  deetl  made  upon 
condition  which  does  not  entitle  the   vendor  to  the 


3S3  PERSONAL  PROPERTY  SL'^BJECT  TO  EXECUTIOX.        §  149 

immediate  possession.  The  case  of  Edwards  v.  Har- 
bin, Executor  of  Tempest  Mercer,  2  Term  Rep.  587, 
turns  on  this  distinction,  and  is  a  very  strong  case. 

*'  Wilham  Tempest  Mercer,  on  the  27th  of  March, 
1786,  offered  to  the  defendant,  Harbin,  a  bill  of  sale  of 
sundiy  chattels  as  security  for  a  debt  due  by  Mercer 
to  Harbin.  This  Harbin  refused  to  take,  unless  he 
should  be  permitted,  at  the  expiration  of  fourteen 
days,  if  the  debt  should  remain  unpaid,  to  take  posses- 
sion of  the  goods,  and  sell  them  in  satisfaction  of  the 
debt,  the  sur[)lus  money  to  be  returned  to  Mercer. 
To  this  Mercer  agreed,  and  a  bill  of  sale,  purporting 
on  the  face  of  it  to  be  absolute,  was  executed,  and  a 
corkscrew  delivered  in  the  name  of  the  whole.  Mer- 
cer died  within  fourteen  days,  and  immediately  after 
their  expiration,  Harbin  took  possession  of  the  goods 
specified  in  the  bill  of  sale,  and  sold  them.  A  suit 
was  then  brought  against  him  by  Edwards,  who  was 
also  a  creditor  of  Mercer,  charging  Harbin  as  executor 
in  his  own  wrong;  and  the  question  was,  whether  this 
bill  of  sale  was  fraudulent  and  void,  as  being  on  its  face 
absolute,  and  being  unaccompanied  by  the  delivery  of 
possession.  It  was  determined  to  be  fraudulent;  and 
in  that  case,  it  is  said  that  all  the  judges  of  England 
had  been  consulted  on  a  motion  for  a  new  trial  in  the 
case  of  Bamford  v.  Baron,  and  were  unanimously  of 
opinion  that  'unless  possession  accompanies  and  follows 
the  deed,  it  is  fraudulent  and  void';  that  is,  unless  the 
possession  remain  with  the  person  shown  by  the  deed 
to  be  entitled  to  it,  such  deed  is  void  as  to  creditors 
within  the  statutes.  This  princ'i[)lc  is  said  by  Judge 
Bullcr  to  have  been  long  settled,  and  never  to  have 
been  seriously  questioned.     He  states  it  to  have  been 


§  141)        PEHSOXAL  rUOFFJiTY   SURTECT  TO  EXKCUTION.  3S4 

estahlisliod  l«y  l.oid  ('okc.  in  'J  Uulstrodc,  so  tar  as  to 
ilcolaiv  that  an  alisoliitr  ciun  tyancc  or  L;ilt  '*l  Ji  Uniso 
for  y em's,  unattoiulcd  with  possession,  was  tVaiuhilont. 
'But  if  tho  i\ccd  or  coiivryanoo  ho  coiuhtioiial,  then 
the  veiulor's  continuiirj;  in  possession  does  not  avoid  it, 
l)ecauso,  by  tlio  terms  of  tlie  eonvivaner,  the  viiuh'C  ia 
not  to  have  the  possession  till  he  lias  jici-lnrnitMl  tliG 
condition.'  'And  tluit  ease,' continues  , I  ud^c  J^ulliT, 
'makes  the  distinction  between  (h>e(ls  or  bills  of  sale 
whicli  are  to  take  })lace  immediateh'  and  those  wliicli 
arc  to  take  place  at  some  future  time.  For  in  tlio 
latter  case,  the  possession  continuinL;  with  the  vendor 
till  sueh  future  time,  or  till  that  condition  be  per- 
formed, is  consistent  with  the  d<.'ed,  and  such  possession 
comes  within  the  rule  as  accompanying  and  following 
the  deed.  That  case  has  bet  n  uiiivensally  followed  by 
all  the  cases  since.'  'This,'  continues  the  judge,  'has 
been  argued  by  the  defendant's  counsel  as  being  a  case 
in  whicli  the  want  of  possession  is  only  (evidence  of 
fraud,  and  that  it  was  not  sueh  a  circumstance,  j>cr  S(', 
as  makes  the  transaction  fraudulent  in  point  of  law; 
that  is  the  point  which  we  have  considered,  and  we 
are  all  of  opinion  that  if  there  is  nothing  but  the  abso- 
lute conveyance,  without  the  possession,  that  in  point 
of  law  is  fraudulent.' 

"This  court  is  of  the  same  opinion.  We  think  tlie 
intent  of  the  statute  is  best  promoted  by  that  con- 
struction; and  that  fraudulent  conveyances,  which  are 
made  to  secure  to  a  debtor  a  bein  ficial  interest  while 
his  property  is  protected  from  creditors,  will  be  most' 
effectually  prevented  l)y  declaring  that  an  absolute  bill 
tif  sale  is  itself  a  fraud,  unless  j)ossession  accompanies 
and  follows  tlie  deed."     The  principles  thus  announced 


385  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTIOX.        §  149 

and  adopted  have  been  reaffirmed  in  many  eases  in  the 
federal  courts.^  The  general  rule,  that  an  absolute  sde 
not  accompanied  and  followed  b}^  possession  by  the 
vendee  of  the  chattels  sold  i>  'pcr  se  fraudulent,  now" 
prevails  in  several  of  the  states.  In  some  of  them  it 
is  subject  to  the  exception  stated  in  Hamilton  v. 
Russell,  in  favor  of  conditional  sales,  but  in  others  this, 
exception  is  not  recognized.  In  another  section  we 
shall  refer  to  conditional  sales.  In  the  present  section 
we  shall  proceed  to  show  in  what  states  the  rule  of 
Hamilton  v.  Russell  is  accepted  and  enforced  in  con- 
nection with  absolute  sales.  In  California  all  doubts, 
were  avoided  by  clearly  incorporating  this  rule  in  the 
statute.^  In  Connecticut,  possession  by  the  vendor 
has  always  been  regarded  as  conclusive  evidence  of 
fraud.^  In  Delaware  the  statute  provides  that  in  a 
bill  of  sale  of  chattels,  the  title  shall  not  pass  except 
as  against  the  vendor,  unless  possession  be  delivered  to 
the  vendee  "as  soon  as  conveniently  may  be"  after 
the  sale.  Under  this  act  sales  without  a  change  of 
possession  are,  as  against  creditors,  void.^  In  Florida 
and  Illinois  the  courts  have  coincided  with  the  views, 
expressed  in  Hamilton  v.  Russell.^     In  Iowa  a  creditor 

'  Tr.ivers  i'.  Ilamsay,  3  Cranch  C.  C.  354;  Moore  v.  Ringgold,  3  Cranch  C.  ('- 
A'M;  Hamilton  r.  Franklin,  4  Cranch  C.  C.  729;  Meeker  r.  Wilson,  1  Gall. 
419;  Phettijilaco  r.  Saylcs,  4  Maison,  312;  D'Wolf  r.  Harris,  4  Mason,  51 5^ 
Merrill  r.  Dawson,  Hemp.  5G3;  Comly  r.  Fisher,  Taney,  21G;  Allen  v.  Massey, 
2  Ahb.  GO.     But  8ce  Warner  r.  Norton,  20  How.  448. 

'  Whitney  ;'.  SUrk,  8  Cal.  514:  G8  Am.  Dec.  3G0;  HoJgkins  v.  Hook^ 
23  Cal.  581;  Chcnery  v.  Palmer,  G  Cal.  110;  G5  Am.  Dec.  493;  Stevens  r. 
Irwiu,  15  Cal.  503;  7G  Am.  Dec.  500. 

t  »  Patten  r.  .Smith,  5  Conn.  19G;  Swift  r.  Thompson,  9  Conn.  G3;  21  Am. 
Dec.  718;  WeljHter  r.  Peck,  31  Conn.  495;  Gayhir  v.  Harding,  37  Conn.  .'"•OS; 
HaUitil  r.  Blakeolee,  41  Conn.  301;  Calltin.s  r.  Lockwood,  17  Conn.  154;  42 
Am.  Dec.  729;  Crouch  v.  Carrier,  10  Conn.  505;  41  An>.  Dec.  15G. 

•  Ilowman  v.  Herring,  4  Harr.  (Del.)  458. 

*(Jil)»ou  r.    Love,  4  Fla.  217;  Sanders  v.  Pepoon,  4   I'ia.  4G5;  Thornton  r. 
Daveoport,  1    Scam.  290;  19  Am.  Doc.   358;  Rliinea  u.  Pholpa,  3  Gilm.  455^ 
Vol.  I.  —  » 


§  149        PERSONAL  rROPERTY  SUBJECT  TO  EXECUTION.  886 

may  tako  o\\  oxoout'um  property  still  in  possossioii  of 
the  vtMulor.  unless  he  lias  actual  notice  of  the  sale,  or 
constructive  notice  ''ivi-n  1)V  recordinj?  the  hill  of  halo 
as  rcquireil  by  stiitutc/  The  decisions  made  in  Ken- 
tucky are  so  citeil  by  ^Ir.  Parsons,  in  his  work  on 
contracts,  as  to  indicate  that  they  were  conllictinj^, 
and  that  a  considerable  portion  (if  them  supported 
the  litH'trine  tliat  the  retention  of  a  chattel  by  the 
vendor,  after  its  absolute  sale,  is  only  evidence  of 
fraud.  I'pon  examination,  the  decisions  in  that  state 
will  be  found  to  atiirm,  in  the  most  unequivocal  terms, 
that  an  al)-;olute  sale  of  j)ersonal  property,  unless  fol- 
lowed by  the  delivery  of  possession  to  the  vendee,  is 
per  sc  fraudulent  and  void,  and  cannot  be  aided  by 
proof  showing'  that  the  transaction  was  in  fact  in  good 
faith  and  of  the  most  meritorious  nature."  Nor  can 
this  rule  be  dispensed  with  because  the  vendor  and 
vendee  live  in  the  same  house,^  nor  because  the  exe- 
cution creditor's  debt  accrued  subsequently  to  the  sale.* 
But  where  the  sale  is  not  absolute,  and  the  title  and 
right  of  possession  are  not  to  be  divested,  except  on  the 
performance  of  subsequent  acts,  the  retention  of  pos- 
session by  the  vendor  is  not  j)er  se  fraudulent,  because 

Thompson  v.  Ycck,  21  111.  7."^;  Dexter  v.  Parkins,  22  111.  14.3;  Ketehum  ?■. 
Watsf.n,  24  111.  591;  Corgan  r.  Frew,  39  111.  31;  89  Am.  Deo.  2SG;  Alleu  ?>. 
Carr,  So  111.  3.s9;  Tickuor  r.  McClelland,  84  111.  74. 

'  Miller  r.  Bryan,  3  Clarke,  ^jH;  Courtright  v.  Leonard,  11  Iowa,  32;  Day  r. 
Griffith,  l.>  Iowa.  104;  I'rather  >•.  Parker,  24  Iowa,  2G. 

*  Baylor  t:  SniitlicrV  Heirs,  1  Litt.  105;  Goldshury  r.  May,  1  Litt.  25G; 
Daniel  r.  Hriland,  4  J.  J.  Marsli.  IS;  Bruniiel  v.  Stoekton,  3  Dana,  1.34;  An- 
thony r.  Waile,  1  Bu.sh,  110;  Miles  v.  Edelen,  1  Duvall,  270;  Allen  v.  Johnso^ 
4  J.  J.  Marsh.  235;  Dale  r.  Arnold,  2  Bibb,  G05;  Stevens  v.  Barnett,  7  Dana, 
257;  Hun.lley  r.  Webb,  3  .J.  J.  Marah.  G43;  20  Am.  Dec.  189;  Waller  v.  Todd, 
3  Dana,  503;  28  Am.  Dec.  94. 

»  Waller  r.  Cralle,  8  B.  M<.n.  11. 

«  Woodrow  r.  Davis,  2  B.  Moii,  298^ 


3S7  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  149 

not  inconsistent  with  the  contract/  In  Wash  v.  Med- 
ley, 1  Dana,  269,  a  deed  of  slaves  was  made  by  one 
member  of  a  family  to  another,  but  was  succeeded  by 
no  visible  change  in  possession.  The  court  held  this  not 
fraudulent  per  sc,  because  the  family  lived  together.  In 
this  respect  this  decision  is  in  effect  overruled  by  the 
subsequent  cases  of  Waller  v.  Cralle,  8  B.  Mon.  11,  and 
Jarvis  v.  Davis,  14  B.  Mon.  529,  61  Am.  Dec.  166. 
In  Louisiana  the  retention  of  possession  by  the  vendor 
is  conclusive  evidence  of  fraud,  and  the  goods  may  be 
ta,ken  under  execution  against  him.^  The  same  rules 
which  we  have  stated  as  prevailing  in  Iowa  are  equally 
applicable  to  sales  of  chattels  in  Maryland.^  Missouri, 
at  an  early  day,  was  on  this  subject  in  full  accord  with 
the  decisions  of  the  federal  judiciary.*  Subsequently 
this  state  by  statute  adopted  a  different  rule;^  but  still 
later,  by  chapter  107,  section  10,  of  statutes  of  1866, 
the  legislature  declared  all  sales  of  personal  property 
void  as  to  creditors,  unless  possession  was  taken  within 
a  reasonable  time.  The  statute  of  Nevada  and  the 
decisions  made  under  it  are  in  consonance  with  the 
statute  and  decisions  in  California.*  "In  New  Hamp- 
shire the  principle  appears  to  be  nearly  tlie  same  as  in 
the  federal  courts,  tliough  declared  in  a  form  somewhat 
different;  in  fact,  instead  of   the   nile  of  the   federal 

'  Baylor  r.  Smither's  Heirs,  1  Litt.  105;  Hundley  v.  Webb,  3  J.  J.  Marsh. 
643;  20  Am.  Dec.  189. 

*  Oarrit«on  v.  Creditors,  7  La.  551;  Jorda  v.  Lewis,  1  La.  Ann.  69;  Zachario 
V.  Rich.  14  La.  Ann.  433;  Lassiter  v.  Bussy,  14  La.  Ann.  699;  Civil  Code, 
seen.  1916,  1917. 

*  Bruco  r.  Smith,  3  Har.  &  J.  499;  HamMeton  v.  Haywaril,  4  Har.  &  J.  443; 
Hudson  r.  Warner,  2  Har.  &  O.  416. 

*  Kocheblave  r.  Potter.  1  Mo.  561;  14  Am.  Dec.  305;  Wallace  ».  Foster,  2 
Mo.  231;  Sibley  v.  Ho<m1.  3  Mo.  .390. 

*  State  r.  Evans.  39  Mo.  I.')0. 

*  Doack  V.  Brubaker,  I  Nov.  218;  Lawrence  v.  Bumham,  4  Hev.  361. 


§  149        PERSONAL  PROPERTY  SUaiECT  TO  EXECUTION.  3S8 

courts  boiiiLX  ostaMishcd,  tlio  pri)icij)!c  ami  reason  on 
vhich  the  rulo  is  hasod  an*  used  as  guides."' 

lli'iu-f.  whWc  the  eourts  of. this  state  have  hesitated 
to  doehire  tliat  the  ri*teutii)ii  of  j)ossession  hy  the  vendor 
is  oonehisive  ovidenee  of  fraud,  they  liave  at  tlie  saiue 
time  held  it  eonclusivc  evidence  of  a  secret  trust  unless 
explained.  What  explanation  might  suffice  to  over- 
come the  presumptive  evidence  of  fraud,  they  have 
nowhere  clearly  indicated.  It  appears,  however,  that 
proof  of  the  actual  good  faith  of  the  transaction  will 
not  accomplisli  tliis  purpose,  "hut  a  satisfactory  reason 
must  be  shown  for  allowing  the  vendor  to  retain  the 
possession  of  the  goods,  else  it  will  be  presumed  that 
it  was  intended  he  should  have  the  use  of  them.  What 
would  be  a  sutficient  explanation  of  the  possession,  an 
a  general  principle,  has  not  been  determined  in  this 
state."^  The  early  cases  in  New  York  have,  through 
the  construction  given  to  a  subsequent  statute,  ceased 
to  control  the  law  of  that  state;  but  they  will  be  al- 
luded to  here  for  the  purpose  of  showing  the  inter- 
pretation they  gave  to  the  statute  of  13  Elizabeth  while 
it  was  still  in  force.  In  the  case  of  Sturtevant  v.  Bal- 
lard,^ decided  in  1812,  Kent,  chief  justice,  delivered 
the  opinion  of  the  court,  saying:  "The  facts  lie  in  a 
narrow  compass.  Meeker,  on  the  2d  of  August,  1810, 
obtained  a  iudt^ment  against  Jloff.  On  the  29th  of 
August,  Holt  sold  his  goods  and  chattels  (being  a  quan- 
tity of  blacksmith's  tools)  to  the  plaintiflNs,  partly   for 

»  Smith  H  Lea*l.  Cas.  63.  See  Haven  v.  Low,  2  N.  H.  13;  0  Am.  Dec.  25; 
Coburu  r.  Pickering,  3  N.  H.  415;  14  Am.  Dec.  375;  Traak  r.  BowerH,  4  N.  H. 
309;  Clark  r.  Mor.se,  10  N.  H.  239;  Kendall  v.  Fitts,  2  Fo3t.  1;  Paul  v. 
Cr.K>ker,  8  N.  H.  28S;  Parker  v.  Patton,  4  N.  H.  I7C. 

'  Putnam  r.  Oigocxl,  52  N.  H.  148;  Coolidge  r.  Melvin,  42  N.  H.  510; 
French  r.  Hall,  9  N.  H.  137;  32  Am.  Dec.  34. 

»  9  Johna.  337;  ft  Am.  Dec.  281. 


389  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §  149 

cash  and  partly  to  satisfy  a  debt  due  to  them.  The 
articles  were  specified  in  a  bill  of  sale,  and  the  bill  con- 
tained an  aixreement  that  Holt  was  to  retain  the  use 
and  occupation  of  the  goods  for  the  term  of  three 
months.  Just  before  the  expiration  of  the  term,  and 
while  the  goods  continued  in  the  possession  of  Iloltj 
the}'"  were  seized  by  the  defendant,  as  sheriff,  by  virtue 
of  an  execution  issued  on  the  judgment  in  favor  of 
Meeker.  The  question  arising  upon  this  case  is,  whether 
the  sale  to  the  plaintiffs  under  the  above  circumstances 
was  valid  in  law  as  against  the  judgment  creditor. 

"As  between  the  parties  to  it,  a  sale  of  chattels  un- 
accompanied by  possession  may  be  valid.  It  may  even 
be  valid  as  ai^ainst  a  creditor  who  was  knowing  and 
assentinij  to  the  sale.  It  was  so  ruled  in  Steele  v. 
Brown  and  Pary,  1  Taunt.  381 ;  but  this  is  not  such  a 
case.  Here  was  a  judgment  creditor  affected  by  the 
sale. 

"The  statute  of  13  Elizabeth,  and  which  has  been 
re-enacted  with  us  (Sess.  10,  c.  44,  sec.  2),  makes  void 
all  grants  and  alienations  of  goods  and  chattels  made 
with  intent  to  delay,  hinder,  and  defraud  creditors. 
This  statute,  as  it  has  frequently  been  observed  by  the 
EnfjUsli  judges,  was  declaratory  of  the  common  law; 
and  the  true  ])rinciples  of  law  in  relation  to  such  sales 
are  to  be  found  in  a  series  of  judicial  decisions,  both 
before  and  since  the  statute  of  Elizabeth;  the  great 
point  is,  whether  the  fact  of  permitting  the  vendor  to 
retain  po.sscssion  of  the  goods  did  not  render  this  sale 
fraudulent  in  law,  notwithstanding  such  permission  was 
inserted  in  the  deed  as  a  condition  of  the  contract.  If 
there  had  been  no  such  inscrtif)n,  but  the  sale  had  })ecn 
absolute  on  the  face  of  it,  and  pos.session  had  Miot  im- 


§  1  »0        PERSJONAL  rROPKRTY  SITRJECT  TO  EXKCUTION.  390 

meiliati>ly  acooinpanicd  and  followed  the  sal(\  it  would 
luiN'o  boon  iVaudiiUMii  as  ai^aiiist  cri'ditors;  aiul  the 
fraud  in  such  case  would  liavt^  \h'vu  an  inference  or 
eonelusion  d"  law,  wliidi  tlic  court.  wouM  have  been 
Ih>uiu1  to  proncHUice.  This  is  a  well-settled  principle 
in  the  K)Kjli,'<Ii  courts.  It  is  to  ho  met  with  in  a  variety 
of  cases,  and  especially  in  that  of  lulwards  r.  Ilarhen, 
2  Term  Rep.  587;  and  it  has  heeii  recognized  and 
adopted  hy  some  of  the  most  respectahle  tribunals  in 
this  country.  But  it  by  no  means  follows  that  such  a 
sale,  with  such  an  agreement  attached  to  it  and  a[)pcar- 
ing  on  the  face  of  the  deed,  is  necessarily  valid.  There 
nmst  be  some  sufficient  motive,  and  of  which  the  court 
is  to  judge,  for  the  non-delivery  of  the  goods,  or  the 
law  will  still  juTSume  the  sale  to  have  been  made  with 
a  view  to  'dela}^,  hinder,  or  defraud  creditors.'  Deliv- 
ery of  possession  is  so  nmch  of  the  essence  of  a  sale  of 
chattels  that  an  agreement  to  permit  the  vendor  to 
keep  possession  is  an  extraordinary  exception  to  the 
usual  course  of  dealing,  and  requires  a  satisfactory  ex- 
planation. This  was  a  voluntary  sale  made  by  the 
debtor  soon  after  the  judgment  against  him,  and  made 
to  a  creditor,  partly  for  cash  and  partly  to  satisfy  an  old 
debt;  and  why  was  the  sale  made  three  months  l)cfore 
possession  was  to  be  delivered,  if  it  was  not  to  defeat 
the  intermediate  execution  of  the  judgment  creditor? 
There  is  no  assignable  reason  appearing  for  the  arrange- 
ment, and  the  time  of  delivery  might  have  been  post- 
poned for  three  years  as  well  as  for  three  montlis. 
The  instances  in  which  a  sale  of  chattels,  unaccom- 
panied with  delivery,  has  been  held  valid,  ar-e  all 
founded  upon  special  reasons,  which  have  no  applica- 
tion to  this  case. 


391  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §149 

"  The  general  principle  involved  in  this  discussion  is 
extremely  important  to  the  commercial  interests  of  the 
community,  and  to  confidence  and  integrity  in  deahng. 
The  law,  in  every  period  of  its  history,  has  spoken  a 
uniform  language,  and  has  always  looked  with  great 
jealousy  upon  a  sale  or  appropriation  of  goods  without 
parting  with  the  possession,  because  it  forms  so  easy 
and  so  fruitful  a  source  of  deception.     Lord  Kenyon 
said  he  lamented  that  it  was  ever  decided  that  the  pos- 
session and  apparent  ownership  of  personal  property 
might  be  in  one  person,  and  the  title  in  another,  and 
he  thought  it  would  have  been  better  for  the  public  if 
the  possession  of  such  property  (except  in  the  case  of 
factors)  were  to  carry  the  title.     The  value  of  the  prin- 
ciple, and  its  necessity,  were  perceived  and  felt  as  early 
as  the  age  of  GlanviUe;  for  he  observed,  when  speak- 
ing of  pledges,   that  '  when  a  thing  is  agreed  to  be 
placed  in  pledge,  by  a  debtor  to  a  creditor,  and  delivery 
does  not  follow,  it  becomes  a  question  what  shall  be  done 
for  the  creditor  in  tliat  case,  since  the  same  thing  may  he 
jjledfjed  to  other  creditors,  both  before  and  after.     And  it  is 
to  be  observed  that  the  court  will  not  regai-d  such  pri- 
vate arransrements,  nor  intermeddle  therewith,  or  sus- 
tain  a   suit    thereon.'     This   was    acknowledging    the 
mischief,  and  admitting  the  remedy,  under  the  same 
enlightened  view  of  public  policy  and  puivate  interest 
which  som<!  f)f  the  decisions  of  Lord  Mansfield  announce 
at  the  period  of  the  full  growth  and  maturity  of  the 
commercial  system.     There  is  also  a  case  in  the  Book 
of  Assises,  {'.  101,  i>l.  72,  22  ICdw.  III.,  which  is  much 
to  the  present   purpose.       An  action  of  trespass  was 
brought,   for  wrongfully  taking   .some  castle,  and  the 
jury  found  that  the  defendant  had  received  from  the 


§  1  JO        PERSONAL  PROrERTY   SUBJECT  TO  EXECUTION.  392 

ImilitVtho  boasts,  on  an  oxocnitimi  wliii-li  had  issued  for 
him  against  one  B,  ami  that  tlie  beasts  belonged  to  B 
at  the  time  of  the  judgment,  and  that  he  afterwards, 
bv  deed,  gave  them  to  the  plaintiff*,  to  dehiy  the  execu- 
tion;  and  the  jury,  being  required  by  the  court  to  say 
vhn  took  the  profits  of  the  same  beasts  in  the  mean  time,  they 
answoreil  that  the  donor  did.  Then  Thorpe,  J.,  de- 
clared :  '  I  conceive  the  gift  to  be  of  no  value,  and  I 
hold  that  he  to  whom  such  gift  was  made  was  only 
keeper  of  the  beasts  to  the  use  of  the  other,  Ijccauso 
there  was  fraud,  etc.,  for  othenvise  a  man  could  never 
have  exeaition  of  chattels.' 

"  We  may,  therefore,  safely  conclude  that  a  volun- 
tary sale  of  chattels,  with  an  agreement,  cither  in  or 
out  of  the  deed,  that  the  vendor  may  keep  possession, 
is,  except  in  special  cases  and  for  special  reasons,  to  bo 
shown  to  and  approved  of  by  the  court,  fraudulent  and 
void  as  against  creditors.  This  is  clearly  not  one  of 
those  cases,  and  the  defendant  is  therefore  entitled  to 
judgment." 

The  doctrines  thus  announced  in  the  case  of 
Sturtevant  v.  Ballard  were  reaffirmed  on  several  sub- 
sequent occasions  in  the  same  state;  and  there  is  no 
doubt  that  its  courts  were  fully  committed  to  the 
rules  of  decision  set  forth  in  Edwards  v.  Harben  and 
Hamilton  v.  Russell.^     In  Pennsylvania^  and  in  Ver- 

»  See  Jennings  v.  Carter,  2  Wend.  446;  20  Am.  Dec.  635;  Divver  v.  Mc- 
Laughlin, 2  Wend.  59G;  20  Am.  Pec.  655;  Archer  v.  Hubbell,  4  Wend.  514; 
Doane  r.  Eddy,  16  Wend.  522;  Stevens  v.  Fisher,  19  Wend.  181. 

»  Cunningham  r.  Neville,  10  Serg.  &  K.  201 ;  Clow  v.  Woods,  5  Serg.  &  R.  275; 
9  Am.  Dec.  346;  Bra-ly  v.  Haines,  IS  Ta.  St.  113;  Born  v.  Shaw,  29  Pa.  St.  288; 
72  Am.  Dec.  6.33;  Milne  v.  Henry,  40  Pa.  St.  352;  Dewart  v.  Clement,  48  Pa. 
St.  413;  Davis  v.  Bigler,  1  Am.  Rep.  393;  02  Pa.  St.  242;  Dick  v.  Lindsay,  2 
Grant  Ca.s.  431;  Gorman  v.  Cooper,  29  Leg.  Int.  372;  Strceper  r.  P^ckart,  2 
Whart.  302;  30  Am.  Dec.  258;  Forsyth  v.  Matthews,  14  Pa.  100;  53  Am.  Dec. 
522. 


393  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §150 

mont/  the  rule  that  the  retention  of  possession  by  tlie 
vendor  after  an  absolute  sale  leads  to  a  legal  and  con- 
clusive presumption  of  fraud  has  always  been  sustained. 

§  150.  Recapitulation  of  Authorities  in  Reference 
to  Effect  of  V/ant  of  Change  of  Possession.  —  From 
a  recapitulation  of  the  authorities  cited  in  the  last  two 
sections,  it  will  be  seen  tliat  in  the  states  of  Alabama, 
Arkansas,  Georgia,  Indiana,  Kansas,  Maine,  Massa- 
chusetts, Michigan,  Mississippi,  Nebraska,  New  Jer- 
sey, New  York,  North  Carolina,  Ohio,  Oregon,  Rhode 
Island,  South  Carolina,  Tennessee,  Texas,  Virginia, 
and  Wisconsin,  the  question  of  fraud  or  no  fraud  is 
clearly  one  for  the  decision  of  the  jury.  Of  these 
states,  Indiana,  Kansas,  Nebraska,  New  York,  Oregon, 
and  Wisconsin  have  settled  the  question  by  statute. 
But  in  saying  that  the  question  of  fraud  or  no  fraud  is 
one  for  the  jury,  we  must  not  be  understood  as  imply- 
ing that  the  jury  arc  at  liberty  to  disregard  the  fact 
that  the  vendor  retains  possession  after  his  sale.  If 
the  sale  be  absolute  in  terms,  or  is  sucn  that  the  con- 
tinuing possession  of  the  vendor  seems  to  be  incon- 
sistent with  the  alleged  transfer  of  title,  then  such 
possession  is  everywhere  regarded  as  a  badge  of  fraud. 
TLis  badge  is  not  a  mere  suspicious  circumstance :  it 
is  prima  facie  evidence.  Standing  alone,  it  is  conclu- 
sive against  the  vendee.  He  cannot  prevail  against 
a  subsequent  purchaser,  nor  against  a  creditor  of  the 
vendor,  until  he  has  rebutted  the  presumption  of  fraud 
arising  from  his  want  of  possession.  The  amis  of  proof 
is  u[H)n  him.     He  must  show  clearly,  to  the  satisfaction 

»  Monro  r.  Kclley,  fj  Vt.  .34;  20  Am.  Dec.  283;  Farnsworth  v.  Sliepanl,  6 
Vt.  521;  Hart  r.  F.  &  M.  Bank,  .33  Vt.  2.j2;  Sloeper  r.  I'oUard.  28  Vt.  701);  67 
Am.  Dec.  7tl;  BatclicMerr.  Carter,  2  Vt.  108;  19  Am.  Dec.  707. 


§  i:^        PERSONAL  l-ROPERTY   SUBJECT  TO   EXECUTION.  304 

of  tlio  jiirv.  that  liis  purcliast*  was  luadf  in  <';()0(1  faith, 
aiul  without  aiiv  iiitoiitlou  to  delay  ci-  iK  hand  crcdi- 
toi-s.  Wluit  I'vidriu'o,  on  tho  part  oi'  tho  vciidoo,  may 
oivrato  t«»  ii'inl  tho  jirivsuinption  arisiiiLj  IVoni  his  want 
of  possession  cannot  ho  stated  witli  any  degree  of  cer- 
t:iintv.  As  the  question  is  one  of  fact,  c^videnco  suffi- 
oitMit  to  etmvinco  onc^  j^^iy  *'^'  ^''^'  ,^'>t>*l  faith  of  the 
transaction  nuL^ht  produce  no  sucli  cilect  on  the  minds 
of  another  jury.  But  if  the  vendee  does  not  produce 
some  evidence  tendiiiGf  to  explain  why  lie  did  not 
assume  jiossession,  and  to  show  the  good  faith  of  his 
allei^od  purchase,  the  presumption  against  him  hecomes 
conclusive.*  The  court,  in  such  case,  should  instruct 
the  jury  to  find  in  favor  of  the  creditor  of  the  vendor, 
and  should  set  aside  its  verdict,  and  grant  a  new  trial, 
in  case  it  disregards  such  instruction.  In  New  Hamp- 
shire, while  the  general  rule  seems  to  prevail  that  pos- 
session by  the  vendor  is  not  conclusive  against  the 
vendee,  yet  such  strong  proof  is  required  to  rebut  the 
presumption  arising  from  such  possession,  that,  in  its 
practical  effect,  the  law  of  that  state  approaches  more 
nearlv  to  the  law  of  Hamilton  v.  Ilussell  than  to  the 
opposite  line  of  decisions.  In  the  federal  courts,  and 
m  the  courts  of  California,  Connecticut,  Delaware, 
Florida.  Illinois,  Iowa,  Kentucky,  Louisiana,  Mary- 
land, Missouri,  Nevada,  Penn.sylvania,  and  Vermont, 
the    possession,   continuing    in    the    vendor,   is,    under 

'  Ball  r.  Looinis,  29  N.  Y.  412;  MauMiu  v.  Mitchell,  14  Ala.  S14;  Bank  of 
Mobile  r.  Borland,  5  Ala.  5.39;  Beers  r.  Dawson,  8  Ga.  55G;  Teck  r.  Land,  2 
Kelly,  1;  4(j  Am.  Dec.  308;  Kane  v.  Drake,  29  Ind.  .30;  Nutter  v.  Harris,  9 
Ind.  aS;  Keller  ?•.  Blanehard,  19  La.  Ann.  53;  Kuykeudall  i-.  McDonald,  15 
Mo.  410;  57  Am.  Dec.  212;  Hartinan  r.  Vogtd,  40  Mo.  570;  Kendall  r.  Fitts, 
2  Ff*st.  1;  (Jrubljs  r.  Greer,  5  C<dd.  IGO;  McQuinnay  v.  Hitchcock,  8  Tex.  33; 
Curd  r.  Miller,  7  (iratt.  18.');  Brooks  v.  Powern,  15  Mass.  244;  8  Am.  Dec.  99; 
Ulmer  r.  Hills,  8  Greenl.  320;  Young  v.  Pate,  4  Ycrg.  1G4;  Fleming  v.  Town- 
■end,  OGa.  103;  50  Am.  Dec.  318. 


^95  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTIOX.        §  151 

ordinary  circumstances,  treated  as  fraudulent  per  se. 
For  the  guidance  of  judgment  creditors  in  the  states 
last  named,  we  shall  endeavor  to  show,  —  1.  In  what 
cases  a  change  of  possession  may  be  omitted;  2.  What 
constitutes  a  sufficient  change  of  possession,  where  such 
change  cannot  with  safety  be  omitted;  3.  When  the 
change  must  commence;  and  4.  How  long  it  must  con- 
tinue. 

§  151.  Absolute  Transfers,  in  Which  No  Change  of 
Possession  need  be  Made. — The  cases  in  which  the 
interests  of  a  vendee  are  not  placed  in  jeopardy  by  his 
failure  to  assume  possession  of  the  chattels  purchased 
may  be  divided  into  three  classes.  In  the  first  class 
are  the  cases  in  which  the  necessity  for  a  change  of  pos- 
session is  removed  by  the  nature  of  the  transfer.  The 
second  class  embraces  cases  in  which  tlie  change  of  pos- 
session may  be  dispensed  with,  owing  to  the  character  of 
the  property.  While  in  the  third  class  are  those  cases 
in  which  the  nature  of  the  transfer  and  the  character 
of  the  property  would  both,  in  ordinary  circumstances, 
require  a  change  of  possession ;  but  something  in  the 
situation  of  the  j^roperty,  at  the  time  of  the  sale,  renders 
a  change  in  its  possession  unnecessary  or  impossible. 
The  cases  of  the  first  class  may  again  be  subdivided 
into  aljsolute  transfers,  and  transfers  which  are  not  so 
absolute  in  their  nature  that  the  continued  possession 
of  the  vendor  is  inconsi.stent  with  the  terms  and  pur- 
poses of  the  transfer.  In  tlie  states  in  which  the 
retentif)n  of  possession  by  the  vendor  produces  a 
conchisivc  presumption  of  fraud,  perhaps  the  only 
well-estalilislicd  exceptions,  in  cases  of  alKSolute  sales, 
arising  from  the  nature  of  the  transfer,  are  in  cases  of 


§  i:.l        rER.'^OXAL  TROrERTY  SimiECT  TO  EXECUTION.  300 

niarriai^'o  scttlonu'iits/  ami  cases  where  the  |in)perty  of 
a  (.loteiuhmt  is  s^M  uiuier  an  exocution  di-  otlier  Icixal 
process  a[;ainst  liiin.  "The  notoriety  of  a  pubHc  sale, 
which,  by  giving;  notice  to  the  public  that  the  title  has 
passed  out  of  tlie  former  owner,  aiul  thereby  prevents 
him  from  c)l)tainino^  a  tlelusive  credit,  from  the  appar- 
ent ownership  of  pi-o[»erty  whieli  belongs  to  another, 
creates  a  distinction  between  public  and  private  sales, 
where  there  is  no  change  of  })ossession,  as  to  the  rights 
of  creditors."'  "Ixetention  of  possession  by  the  former 
owner  of  a  chattel  sold  at  sheriff's  sale  is  not  an  index 
of  fraud,  because  the  sale  is  not  the  act  of  tlie  person 
retaining,  but  of  the  law;  and  because  a  judicial  sale, 
being  conducted  by  the  sworn  officer  of  the  court,  shall 
be  deemed  fair  till  it  is  proved  otherwise.  It  may,  like 
a  judgment,  be  shown  to  be  collusive  and  fraudulent  in 
fact;  l)ut  the  presumption  of  the  law  is  favorable  to  it 
ill  the  first  instance.  A  chattel  thus  purchased,  then, 
may  safely  be  left  in  the  possession  of  the  former  owner 
on  any  contract  of  bailment  that  the  law"  allows  in  any 
other  case."^  It  seems  to  be  almost  universally  con- 
ceded that  when  a  stranger  to  the  writ  purchases  and 
pays  for  property  at  an  execution  sale,  the  fact  that  he 
does  not  choose  to  remove  it  from  the  control  of  the 
defendant  neither  renders  the  sale  fraudulent  'pcr  se, 
nor,  unless  connected  w^itli  other  circumstances  of  a 
suspicious  character,  creates  any  presumption  against 
its  good   faith.*     But  when  the  plaintiff  in  execution 

»  Larkin  v.  McMullin,  49  Pa.  St.  29;  Charlton  r.  Gardner,  11  Leigh,  281; 
Cadogaa  r.  Kenu.'tt,  Cowp.  4.S2;  Aruudell  r.  Phipps,  10  Yea.  139. 

»  Simereon  r.  Bank,  12  Ala.  21.3. 

»  Mytrs  V.  Harvey,  2  Pen.  &  W.  481;  23  Am.  Dec.  GO;  Bisbing  v.  Third 
"Nat.  Bank.  93  Pa.  St.  79;  39  Am.  Rep.  72G. 

*  K-id  V.  liawlinson,  2  Bos.  &  P.  59;  3  Esp.  .'52;  Almey  r.  Kingaland,  10 
Ala.  355;  44  Am.  Dec.  491;  Latimer  v.  Batson,  7  Dowl.  &  R.  IOC;  Andersoa.^. 


397  PERSONAL  PROPERTY  SUB.JECT  TO  EXECUTION.        §151 

becomes  the  purchaser,  some  of  the  American  cases 
have  considered  that  tlie  necessit}"  for  a  change  of 
possession  is  as  imperative  as  though  the  sale  were 
voluntary;^  but  in  England  the  question  has  been 
determined  otherwise."  Wo  apprehend  that  there  can 
be  no  well-founded  distinction  between  a  purchase  by 
the  plaintiflP  and  a  purchase  by  a  stranger  to  the  exe- 
cution, unless  the  circumstances  of  the  sale,  taken  in 
connection  with  the  continued  possession  of  the  de- 
fendant, produce  the  conviction  that  the  writ  was  em- 
ployed in  bad  faith,  for  the  purpose  of  withdrawing 
the  property  from  the  reach  of  other  creditors,  without 
affcctin^j:  the  defendant's  beneficial  interest  therein. 

There  is  some  doubt  as  to  the  true  grounds  upon 
which  the  exception  in  favor  of  sales  under  execution 
rests.  Some  contend  that  the  notoriety  of  the  sale 
furnishes  a  sufficient  protection  from  fraud,  and  gives 
ample  notice  of  the  change  of  title.  Others  insist  that 
the  exception  is  justified  by  the  fact  that  the  sale  is  in- 
voluntary, and  is  made  by  the  officers  of  the  law.     If 

Brooks,  11  Ala.  953;  Stone  v.  Waggoner,  3  Eng.  204;  Perry  v.  Foster,  3  Harr. 
(Del.)  2'J3;  Penniugtou  v.  Chandler,  5  Harr.  (Del.)  394;  Greathouse  v.  Brown, 
5T.  B.  Mon.  2Sl);  17  Am.  Dec.  G7;  Miles  r.  E.lclen,  1  Duvall,  270;  Walter  r. 
Gernant,  13  Pa.  St.  515;  53  Am.  Dec.  491;  Dick  v.  Lindsay,  2  Grant  Cas. 
431;  Pooler.  Mitcliell,  1  Hdl  (S.  C),  404;  Guignard  v.  Aldrich,  10  Rich.  Eq. 
253;  Coleman  v.  Bank  of  Hamburg,  2  Strob.  Eq.  285;  49  Am.  Dec.  G71;  Board- 
man  r.  Keeler,  1  Aik.  158;  15  Am.  Dec.  070;  Dick  v.  Cooper,  24  Pa.  St.  217; 
CI  Am.  Dec.  652;  (Janctt  v.  Rhame,  9  Rich.  407;  G7  Am.  Dec.  557;  McMichacl 
V.  McDermott,  17  Pa.  St.  3.53;  55  Am.  Dec.  560.  The  priiiciplo  also  extends 
to  salei  under  distress  for  rent.  Water  v.  McClellan,  4  Dall.  208.  In  New 
York,  a  purchase  by  a  stranger  to  the  execution  was  deemed  frau<lulcnt,  where 
for  more  than  a  year  ho  allowed  the  defendant  to  ret;iin  possession  and  deal 
•with  the  goods  a:j  his  own.  Dickenson  v.  Cook,  17  Johns.  332.  But  where 
there  i.s  no  apparent  intent  to  defraud  creditors,  the  purchaser  may,  in  that 
■tate,  have  the  goods  with  the  defendant.     Mclnstry  v.  Tanner,  9  Jolin.s.  135. 

'  Williama  r.  Kulsey,  0  Ga.  365;  Farrington  r.  Caswell,  15  J».hna.  430; 
Gar<lenior  v.  Tubljs,  21  Wend.  109.  Bnt  see  Floyd  v.  Goodwin,  8  Yerg.  484; 
29  Am.  Dec.  132. 

'  Watkinu  v.  Birch,  4  Taunt.  823. 


5  i:.l        riTvSONAL   rUOrKUTY   SUIUECT  TO  KXECUTION.  308 

tho  notorirty  oC  tlio  .silr  j'lirni  Iks  a  siillicinit  reason 
{or  this  I'XcopticMi,  then  it  wor.ld  s«'cm  that  the  ruK( 
ought  to  oxt«  iitl  (<>  otluT  saU's  atttiMK.l  with  b(|ual 
jnihlicity.  Wlurr  dihtors  niakc  assiLi^niiuMits  of  per- 
sonal propiTty  for  tlie  luMirfit  of  tlicir  crcchtors,  anil 
the  assij^nee-;  thereafter,  in  pursuance  i»f  )»ul»lie  notice, 
sell  the  propj^rty  at  auction,  tlie  purchasers  may,  ae- 
/-•orilinLT  to  a  deeitleil  j)repon(lerance  of  the  authorities, 
safely  allow  the  goods  to  remain  with  the  assignors.* 
But  in  \\rmont  the  authority  of  these  eases  is  de- 
nied." and  the  excei»tl<»ii  which  we  are  discussing  is 
conrnied  to  purchases  at  sales  math-  under  ltL:al  pro- 
cess. Hence,  where  a  constahle  sold  })roperty  hy  con- 
sent of  the  defendant,  not  having  legal  process  in  his 
liands,  the  supreme  court,  hy  li((iriekl,  J.,  said:  "It  is 
at  present  a  well-settled  piiii<iple  of  tlK>  law  of  tins 
state  that  sales  of  personal  chattels,  unaccompanied  by 
an}'  visible,  substantial  change  of  possession,  are  inop- 
erative as  ajrainst  the  creditors  of  the  vendor.  The 
case  of  sheriff's  sales  has  been  considered  an  exception 
from  the  operation  of  this  rule.  It  is  not  now  neces- 
sary, and  could  not  be  useful,  to  go  into  the  reasons  of 
the  exception.  The  cases  upon  that  sul)ject  have  fol- 
lowed in  the  track  of  Kid  v.  Kawlinson,  2  Bos.  &  P. 
51).  The  principal  reasons  there  urged  in  i'avor  of  tho 
determination  are,  that  the  publicity'  and  character  of 
the  .sale  rebut  all  inffTcnce  of  fraud.  For  myself,  I 
think  this  exceptiori  rests  more  upon  the  fact  that  it  is 
a  transfer  of  title  by  operation  of  law  than  u|m)Ii  its 
notoriety.      It   is    the    former  rather    than    tlie    latter 

'  Lconar-l  r.  lUkcr,  1  Maulo  &  S.  2.")1;  W.xxlliaiii  v.  li-ildock,  3  T.  IJ.  Moore, 
11:8  Taunt.  070;  Wyatt  r.  Stewart,  lH  Ala.  710;  MontgoiiKry  v.  Kirksey,  26 
Ala.  172;  (>arlaD<l  r.  Chaiiil>erii,  11  Sme<lca  &  M.  .'137;  4'JAim.  JJec.  03;  Ewing 
r.  Cargill,  13  Stiic«lcii  &.  M.  7'J;  Jczeph  v.  Ingram,  1  T.  11.  .Moore,  189 

» IU>ger«  c.  Vail,  10  Vt.  327. 


399  PERSONAL  PROPERTY   SUBJECT  TO  EXECUTION.        §151 

which  distinguishes  it  from  sales  by  contract  of  the 
parties;  for  if  all  public  sales  were  to  form  exceptions 
to  this  very  salutary  rule,  it  would  doubtless  cease  to 
have  any  beneficial  operation.  Sheritls'  sales,  and  all 
sales  made  by  officers  of  the  law,  must  be  held  prima 
facie  good  to  transfer  the  title  of  the  debtor.  Now,  no 
law  and  no  practice  requires  such  officer  to  make  any 
delivery  of  the  property.  When  he  appears  to  have 
proceeded  as  sheriff  or  other  officer,  and  the  sale  is  i)i 
invitum,  it  will  be  recognized  as  an  exception  to  the 
rule.  But  where  he  really  proceeds  by  consent  of  the 
parties,  and  in  making  the  sale  acts  as  the  agent  of 
the  parties,  and  not  as  the  minister  of  the  law,  his  pro- 
ceedings cannot  be  allowed  any  greater  force  than  those 
of  any  other  auctioneer." '  The  fact  that  sales  by  auc- 
tion furnish  no  exception  to  the  general  rule  ^  strongly 
confirms  the  theory  announced  by  Judge  Ixedfield,  and 
stated  in  the  preceding  quotation.  "An  execution  sale 
may  be  resorted  to  for  the  purpose  of  hindering,  delay- 
iiiff,  or  defrauding  the  creditors  of  the  deiendant,  and 
when  shown  to  haN-c  been  resorted  to  for  this  purpose, 
it  will  be  treated  as  void.  The  retention  of  possession 
by  the  defendant  after  such  a  sale  is  not  in  harmony  with 
his  changed  relation  to  the  property,  and  has  therefore 
been  properly  regarded  as  a  suspicious  circumstance, — 
one  indicating  that  the  sale  may  have  been  made  in  the 
interest  of  the  defendant,  without  desiring  to  deprive 
him  of  any  beneficial  interest  in  the  property,  but 
rather  to  assure  him  of  the  continuous  enjoyment  of 
such   interest  l»y  witlidiawing  it  Ixyond  the  rea<'h  of 

'  Kelly  r.  Hart,  14  Vt.  r>:i;  Laugliliii  r.  FcrgUBon,  6  Uaiio,  118;  Stephens  r. 
Barnctt,  7  Dana,  'J.'»7. 

'  lUiikin  r.  llolh.way,  3  SuieJea  A  M.  014;  Batchcldor  r.  Carter,  *2  Vt.  108; 
19  Am.  Dec.  707. 


§  152         TERSOXAL  PROrERTY   SUBJECT  TO   EXEtX'TlON.  100 

inorr  liostilo  crrditors.  If  in  sin  li  a  case  the  jilaintlff 
in'oxecut'mn  was  tlio  purcliasor,  lie  must,  to  maintain 
his  titlo.  sliovv  tliat  his  jiulLjiiunt  was  an  honest  and 
fair  one."'  'I'lie  retention  of  i)oss(>ssion  hy  the  debtor 
may  undouhledly  be  considered,  in  conucction  with 
other  einnimstanoes,  as  tcndinjj^  to  show  that  the  sale 
was  tVaudulent,  and  therefore  void." 

^  152.  Transfers  of  Title,  Made  to  Secure  the 
Payment  of  Indebtedness,  are,  in  some  of  tlie  states, 
treated  differently  from  onhnary  hills  of  sal<>.  The 
reason  of  this  dilfercnce  has  been  thus  cx[>lainL'd: 
"  There  is  evidently  an  essential  diflcrence  between 
the  effect  of  a  possession  retain*  ( I  by  the  maker  of  an 
absolute  bill  of  sale,  and  the  possession  retained  by  the 
maker  of  a  mortufage.  The  object  of  one  is  to  j)ass  an 
a!)Solute  rii^ht  of  property,  and  the  object  of  the  other 
is  to  give  a  security  defeasible  upon  a  particular  con- 
tingency. The  possession  in  the  former  case  is  utterly 
incompatible  with  the  deed;  whereas,  in  the  latter  ease, 
there  exists  no  such  incom[)atibility.  Whilst,  there- 
fore, the  possession  in  the  former  case  may  be  correctly 
said  to  form  conclusive  and  introversible  evidence  of 
fraudulent  intent,  and  render  the  deed  'per  se  fraudu- 
lent, such  cannot  be  admitted  to  be  the  effect  of  the 
possession  in  the  latter  case."^  This  line  of  reasoning 
has  been  frequently  followed  in  other  states,  and  mort- 
gages of  personal  property  sustained,  though  the  pos- 
session remained  with  the  mortgagijr;  and  although, 
perhaps,  in  some  cases,  the  retention  of  possession  by 

>  Floyd  r.  Gocxlwin,  8  Ycrg.  484;  29  A  in-  Dec.  130. 

»8u.%aU  r.  F.  &  M.  liank,  8  Smclcrt  fc  .M.  305;  47  Ain.  Dec.  85. 

»  Md^owen  r.  Hoy.  5  Litt.  243;  Uuckliu  r.  ThoinpswHi,  1  J.  J.  Marsh.  223; 
Sny.ler  r.  Hitt,  2  Dana,  204:  C'laylxiru  r.  Hill,  1  W.wh.  (Va.)  177;  1  Am.  Dec. 
452;  Havin  r.  l>.w.  2  N.  H.  13;  1)  Am.  Dec.  25;  Tliornton  r.  Davenport,  1 
Scam.  2'Jii;  211  Am.  Dlc.  358;  Uumpa^  v.  Dubduu,  7  Humph.  310;  40  Am.  Dec.  81. 


401  PERSONAL  PROPERTY   SUBJECT  TO  EXECUTION.        §  152 

the  mortgagor  may  be  deemed  suspicious,  yet  it  will 
always  be  regarded  in  a  more  favorable  light  than  in 
the  case  of  an  absolute  bill  of  sale  ;^  and  this  is  gener- 
ally true  after  as  well  as  before  default  is  made  in 
pa3"ment  of  the  debt  secured."  But  in  Indiana  the 
mortgagor's  continuance  in  possession  after  condition 
broken  was  held  to  be  prima  facie  evidence  of  fraud.* 
A  conveyance  made  to  trustee-;,  for  the  benefit  of  cred- 
itors, has  also  been  treated  in  the  same  manner  as  a 
mortgage,  for  the  object  of  the  transaction  is  to  enable 
the  trustees  to  appropriate  the  property  to  the  satisfac- 
tion of  the  debts ;  and  it  is  not  inconsistent  with  this 
object  that  the  assignor  should  continue  in  possession 
until  arrangements  for  the  final  disposition  of  tlie  prop- 
erty can  be  consummated.*  But  certainly  the  tempta- 
tion to  fraudulent  mortgages  is  as  great  as  to  fraudulent 
sales.  There  is,  therefore,  great  propriety  in  guarding 
against  such  mortgages,  and  preventing  the  nun-tgagor 
from  gaining  credit  by  his  apparent  ownership  of  prop- 
erty in  which  he  has  little  or  no  beneficial  title.  In 
many  of  the  states  chattel  mortgages  arc  required  to- 
be  recorded,  before  the  necessity  for  a  change  of  pos- 
session can   be  removed;'^    while  in  some  others,  the 

'  Unit€<l  States  r.  Hf)oe,  3  Cranch,  73;  Mageo  r.  Carpentor,  4  Ala.  4t)9; 
Planters'  &  M.  liaiik  r.  Willis,  5  Ala.  770;  Dcaring  v.  Watkius,  10  Ala.  20;  Do 
Wolf  r.  Harris,  4  Mason,  515;  Ash  r.  Savage,  5  N.  II.  545;  Barker  r.  Hall,  13 
N.  H.  298;  RoHO  V.  Burgess,  10  Uigh,  18G;  Martin  v.  Ogden,  41  Ark.  ISO; 
Sjicrry  r.  Etljure<lgc,  G3  Iowa,  543;  Wilson  v.  Sullivan,  58  N.  H.  200. 

'  Heaa  r.  War.l.  1  J.  J.  Marsh.  280. 

*  HankiuM  r.  IngoU,  4  Blackf.  .35. 

♦  ItavisicH  V.  Alston,  5  Ala.  207;  Vernon  r.  Morton,  8  Dana,  247;  Christo- 
pher V.  Covington,  2  B.  Mt>ii.  .357;  Hempstead  r.  Johnson,  18  Ark.  123;  05  Am. 
Doc.  458;  Wilson  r.  Russeli,  13  M.l.  4'J5;  71  Am.  Doc.  045. 

MJriswoM  r.  ShcMon,  4  N.  V.  51)8;  Call  r.  Grny,  .37  N.  H.  428;  75  Am. 
Dec.  141;  Bcvans  r.  IJ«.lton,  31  Mo.  4.37;  Rich  r.  Roherts,  50  Me.  3'.)5;  l^ang- 
worthy  r.  Little,  12  Cush.  lOD;  Hcnilerson  »•.  Morgan,  20  HI.  431;  Wee«l  v. 
SUndley.  12  Kla.  100;  I^kmI  v.  W<  Ich,  28  Conn.  157;  Matlock  r.  Strnughn,  21 
Ind.  128;  Kuhn  v.  (iravwi,  'J  Iowa,  303;  Robiuuon  v.  Elliott,  7  Chic.  L.  N.  193. 
Vol.  l.  —  Ji 


g  l.VJft      rFJV^ONAL   TROPERTY   SURIECT  TO  EXECUTION.  402 

jnvsuiiiption  arisiipj^  from  tlio  cDiitinufil  piKssession  of 
tho  mortyrftjror  is  jircMMscly  the  same  as  iu  the  case  of 
ail  altsi)liitf  Mil  oi^  sal(\' 

jj  152  a.  Conditional  Sales  have  also  l)(>on  luKl  not 
ti>  l»<'  (»f  a  c'haractrr  whu-li  necessarily  i(<iiiiiH'  a  change 
of  possession  to  relieve  them  from  the  imputation  of 
fraud.  "If  the  deed  or  hill  of  sale  show  that  an  ahso- 
luto  and  immediate  title  has  passed,  the  possession, 
\vhieh  is  its  natuial  conscipu'iicc,  must  follow  and  ac- 
company it.  But  if  the  contract  evince  only  a  condi- 
ti«)nal  sale,  and  the  ahsolute  title  has  not  heen  chaiiLCcd, 
it  is  not  necessary  that  there  should  be  a  chau'^e  of 
possession.  But  the  condition  must  be  in  the  title,  and 
not  simply  in  the  contract;  that  is,  the  title  must  de- 
pend on  condition;  and  tliis  must  appear  in  the  deed 
or  bill  of  sale;  and  the  condition  must,  when  it  shall 
so  appear,  be  such  as  the  court  may  consider  reasonable 
and  IciTfal.  For  the  law  does  not  declare  tliat  in  con- 
ditional sales  the  retention  of  the  possession  by  the 
vendor  may  not  be  fraudulent;  but  that,  as  a  general 
rule,  it  is  not  necessarily  so.  It  will,  however,  be  so 
considered  unless  the  condition  be  consistent  with  the 

'  Case  r.  Wiiishii).  4  Blaclcf.  4-2");  30  Am.  Dec.  004;  Rood  v.  Welch,  28 
Conn.  l.>7;  Ryall  r.  Rollc,  1  Wild.  200;  Welch  v.  Becker.  1  Pen.  &  W.  57;  Jen- 
kins r.  Eichclberger,  4  Watts,  121;  28  Am.  Dec.  091;  Clow  t?.  Woo<l8,  f)  Serg. 
k  R.  275;  9  Am.  Dec.  340;  Trovillo  v.  Shingles,  10  Watts,  438;  Weeks  r. 
Wead,  2  Aik.  04;  Tobias  v.  Francis,  3  Vt.  425;  23  Am.  Dec.  217;  Woodward  v. 
Gates,  9  Vt.  358.  With  respect  to  mortgages  deemed  fraudulent  because  they 
jxirmit  the  mortgagor  to  remain  in  possession  and  to  sell  the  mortgaged  chat- 
UU,  see  nnt^,  §  145;  Lund  v.  Fletcher,  .39  Ark.  325;  43  Am.  Rep.  270;  Jacobs 
r.  Erwiu,  9  Or.  52;  Texas  Bank  v.  L<jrenl)erg,  03  Tex.  5(J0;  Lister  v.  Simpson, 
3.8  N.  J.  Ecj.  4.38;  Rome  Bank  v.  Ha.selton,  15  L..a,  210;  Oauss  r.  Doyle,  46 
Ark.  122;  Bullcne  r.  liarrett,  87  Mo.  185;  Winelmrgh  r.  Schaer,  2  Waih.  328; 
Joseph  r.  Ix-'wis,  58  Miss.  843;  Meyer  v.  Evans,  00  Iowa,  179.  Mortgage 
ina<Ic  for  a  greater  sum  than  is  owing  to  the  mortgagee,  for  the  purjiose  of 
protecting  the  property  from  creditors,  is  fraudulent  and  void.  Mitchell  v. 
Sawyer,  115  111.  G5J. 


403  PERSONAL  PROPERTY    SUBJECT  TO  EXECUTION.       §  133 

reason  and  policy  of  the  rule  itself,  which  defines  fraud 
in  law."  ^ 

§  153.  Character  and  Situation  of  Property  as  Dis- 
pensing with  Necessity  for  Change  of  Possession.  — 

The  exceptions  to  the  rule  requiring  a  change  of  pos- 
session to  accompany  an  absolute  sale  to  free  it  from 
the  imputation  of  fraud,  arising  from  the  character  and 
siiuaiion  of  the  property,  will  be  considered  together. 
They  both  rest  on  the  same  ground,  namely,  the  ab- 
surdity of  requiring  that  which  is  impossible  or  highly 
impracticable;"  and  tliey  are  both  limited  by  the  re- 
quirement that  such  a  change  of  possession  as  is  practi- 
cable must  not  be  omitted.  Where  property,  from  its 
character,  is  such  tliat  possession  cannot  be  taken  at 
the  time  of  the  sale,  the  want  of  a  notorious  chano-e  of 
possession  is  not  inconsistent  with  the  transaction,  and 
does  not  render  the  sale  void.  Thus  if  a  man  sells  his 
growing  crop,  it  must  necessarily  be  left  standing  in 
the  same  field  till  ready  for  harvesting.  The  vendor 
is  not  obliged,  because  he  sold  his  crop,  to  quit  posses- 
sion of  his  farm.  Growing  crops,  therefore,  form  an 
exception  to  the  rule  that  there  must  be  a  change  of 
possession  to  render  the  sale  valid,^  although  raised  by 
a  tenant,  and  he  continues  to  reside  on  the  land,  with 
his  vendee,  after  the  sale.'*     "The  acts  that  will  con- 

'  Hundley  v.  Wchl),  .'i  J.  J.  Marsh.  044;  20  Am.  Dec.  189;  Barrow  v.  Pax- 
ton,  5  Johns.  2.jS;  4  Am.  Dec.  W'A. 

'  ClioHCd  in  action,  in  some  statci,  form  an  exception  to  this  atiitement. 
Th'  ir  delivery  is,  in  many  instanoes,  possible;  but  its  absence  has  been  held 
not  t<i  reu'ler  the  sale  fraudulent.  Hall  v.  Redding,  13  Cal.  214;  Living.ston 
r.  Littcll,  15  Wis.  218.  But  Woodbriilgo  v.  Perkins,  3  Day,  304,  Currier  v. 
Hart,  2  Sand.  Ch.  .T):{,  and  Mead  v.  Pliillip.s,  1  Saml.  Ch.  83,  sustain  a  contrary 
doctrine. 

»  Davis  V.  McFarlano,  37  Cal.  0.'W;  H.  lh>ws  v.  Welh,  .30  Vt.  GOO;  Robbins  v. 
OMham,  I  Duvall.  2S;  lUrron  v.  Fry,  2  Ten.  &  W.  203. 

'  Virtclier  r.  Webster,  13  Cal.  68;  Bcrnal  v.  Uovious,  17  Cal.  541;  79  Am, 
Dec.  147. 


|1M        rKR.<OXAL  rUOrKUTY   Sl'lUKcT  Ti)   KXKOUTION.  Ao\ 

htituto  a  iKTivi  ry  \\\\\  varv  in  the  ditl'cniit  rlas-;t'S  of 
cases,  ami  will  tlrprud  Vfiv  iniidi  ujxni  1  lie  cliaracU'r 
ami  quantity  of  tho  property  m»1«1.  as  well  as  the  cir- 
ciinistances  of  each  jtartieular  ease.  Tlie  same  ai'ts  are 
not  necessary  to  make  a  pxul  iKliver}'  of  a  ponderous 
article,  like  a  Mock  of  |j;ranite  or  a  stack  nf  hay,  as 
\vould  he  retpiirrd  in  easi>  k)^  an  arlielf  of  small  Indk, 
as  a  parcel  of  hullion.  It  miL;ht  jiroiu  ily  he  re(juireil 
that  there  slnmld  he  a  manual  deliviry  of  a  sinj^de  sack 
of  grain  at  the  moment  of  its  sale;  hut  upon  the  sale 
of  two  thousand  Siicks,  this  eould  not  he  done  without 
incurring  great  and  unnecessary  expense,  and  depart- 
ing from  the  usual  course  of  husiness."  ^ 

Hence,  where  luniher  is  in  piles,"  or  ha^-  in  a  field,'' 
and  the  purchaser  docs  all  that  the  nature  of  the  prop- 
erty will  permit  toward  at  once  reducing  it  to  his  pos- 
session, he  will  he  allowed  a  rcasonahle  time  to  remove 
it,  and  make  the  change  visihle  and  notorious.  But 
although  the  property  is  not  capahle  of  manual  deliv- 
ery, the  purchaser  must  not  omit  to  do  what  he  can 
toward  giving  notice  of  his  acquisition.  The  owner  of 
a  kiln  of  unhurnt  hricks,  one  hundred  and  thirty  feet 
long,  tliirt}^  feet  wide,  and  lifteen  feet  high,  gave  a  hill 
of  sale  thereof,  and  made  a  formal  delivery.  Ho  then 
continued  in  jiossession  of  the  kiln,  as  was  necessary 
to  attend  to  hurning  it.  He  employed  the  men  and 
bou'dit  the  wood.      The  vendee  visited    the  kiln  five 

O 

times  while  hurning,  hut  informed  no  one  of  his  claim. 
It  was  luld  that  the  sale  was  void  as  against  a  creditor 
attaching  the  property  suhsequcntl}'  to  the  hurning  of 

•  Lay  r.  Neville,  25  Col.  552. 

»  Haj-nca  r.  Humticker,  20  Ta.  St.  58;  Monto  r.  Powcth,  17  N.  U.  280. 
»  CbaiDu  r.  Doub,  14  Cal.  384;  I'acLeco  v.  IIun»ac'.;cr,  14  Cal.  120;  Conway 
r.  Edwarda,  C  Nov.  I'M. 


405  PERSON.^  PROPERTY   SUBJECT  TO  EXECUTION.        §  153 

the  kiln,  and  while  the  bricks  were  yet  too  hot  to 
handle.^  The  delivery  of  a  house  may  be  made,  sym- 
bolically, by  giving  the  vendee  the  key.^  When  we 
come  to  consider  the  exception  arising  from  the  situa- 
tion of  the  property,  we  find  that  it  usually'  rests  on 
necessity,  and  that,  in  general,  even  a  symbolical  deliv- 
ery is  not  sufficient  where  an  actual  delivery  is  practi- 
cable.^ But  where  a  vessel  or  other  property  is  at 
sea,*  or  where  property  is  in  custody  of  an  officer  of 
the  law,^  or  where  logs  are  floating  in  a  river,^  a  s3-m- 

'  Woods  r.  Bugbey,  29  Cal.  4G6. 

»  Vining  r.  Galbreath,  3'J  Me.  490. 

»  Cunningham  r.  Neville,  10  Serg.  &  R.  201. 

♦  Badlain  v.  Tucker,  1  Pick.  3S9;  1 1  Am.  Dec.  202;  Gardner  v.  Rowland,  2 
Pick.  599;  Dawes  r.  Cope,  4  Biun.  25S;  Ludwig  i:  Fuller,  17  Me.  100;  Lam- 
prierc  r.  Pauley,  2  Term  Rep.  485;  Thurct  v.  Jenkins,  7  Mart.  318:  12  Am. 
Dec.  508. 

^  Kliuch  r.  Kelly,  03  Barb.  022. 

•  Leonard  r.  Davis,  1  Black,  470;  Boynton  v.  Veazie,  24  Mc.  2SG;  Sanborn 
V.  Kittredge,  20  Vt.  032;  50  Am.  T^ec.  58.  In  the  case  of  McMarlan  r.  Eng- 
lish, 74  Pa.  St.  290,  it  was  held  that  in  the  case  of  the  sale  of  the  furniture  of 
a  large  hotel,  it  was  enough  for  the  vendee  to  assume  the  direction  and  control 
of  the  property  in  such  an  open  and  notorious  manner  as  usually  accompanies 
an  honest  transaction.  In  Straus  r.  Minzeslicimer,  78  111.  492,  tlio  vendor  of  a 
large  quantity  of  cigars  brought  tlie  vendee  to  the  factory,  and  said  to  hiui, 
"Here  arc  your  cigars."  He  handed  to  him  several  boxes,  and  the  vcndco 
paid  for  tlie  whole,  employed  the  cigar-makers  in  charge  of  tlie  factory  to 
stiinp  tliem  in  acconlanco  with  the  laws  of  the  United  States,  which  require 
Htampiiig  licfore  removal.  Tliis  was  licld  to  be  as  complete  a  delivery  as  tho 
ven<lor  could  make,  and  therefore  sufficient.  In  Morgan  ?'.  Miller,  02  Cal. 
492,  tlie  cattle  tuM  were  running  at  large  with  tliose  of  anotlier  person,  and 
tho  vendor  had  them  driven  uj>  into  a  corral,  and  Kaid  to  the  vendee,  "  Hero 
are  your  cows  that  you  bought."  Tlie  vendee  then  rtcjuestcd  a  person  to  take 
charge  of  the  cattle  for  her,  which  ho  undertook  to  do.  This  wius  held  to  bo  a 
Bufficieut  delivery.  In  Schmidt  r.  Nunan,  03  Cal.  371,  the  vendor  sold  a  <]uan- 
tity  of  hay  on  his  ranch,  to  Ikj  delivered  at  a  landing  on  tho  river.  He  «leliv- 
crcd  it  there,  and  it  was  put  on  board  a  schooner  chartered  by  tho  vemlce, 
when  it  wa."*  attached  by  the  creditors  of  the  vcmlor.  It  wiw  held  to  have  been 
delivered  to  the  veiidie,  ami  not  liable  to  attachment.  In  Tognini  r.  Kyle,  17 
Nev.  209;  4.')  Am.  It*  p.  442,  the  voMilors  executed  to  tno  vendees  n  bill  tif  sale 
of  twelvu  thoufwvnd  buitheli*  of  charcoal  in  pits  on  the  vendors'  land.  Tho 
vendees  sent  a  jK-rson  a  few  days  aft«Twards  to  the  pits,  who  markeil  them 
with  tboir  names.     This   jMsntou  remained  in  charge  a  few   days,  and   then 


§  i:.3        TERSOXAL  TROrERTY   Sl'liJErT  Ti)  EXECUTION.  40G 

Intlical  (Irlivoiy  will   siilliri';  ur  if  that  bo   impossible, 
the  Sill'.'  will  bo  vaiiil  wit  bout  it. 

Ill  suoh  oaso.^,  bowi'vcr,  ilu^  xciulor  must  not  bo  pcr- 
mittocl  to  coiitinuo  in  tho  appaii'ut  owiioiship  of  the 
property  lon^^or  than  its  situation  and  oondition  rondor 
nccossiiry.  So  where  rattle  were  roaniin;^  at  lari^o 
over  the  plains,  upon  a  eertain  range,  it  was  held  that 
the  vendee  should  have  a  reasonable  time  after  the 
sale  to  prepare  for  a  rodeo,  and  to  give  proper  notices 
thereof,  in  order  to  se])arate  tho  cattle  purchasc^d  fnnn 
other   stock,    and    have    them    properly    mark«d    and 

roquestetl  a  ncighlxir  to  look  .after  the  pitH,  which  he  diJ.     TIiIh  was  held  to  1)0 
a  sutlicicnt  delivery. 

lu  Vermont  it  is  held  tliat  logs  in  a  stream,  or  piled  on  its  hunks,  especially 
if  partly  frozen  into  the  ice,  are  of  such  a  cumhrous  character,  and  so  situated, 
as  to  pass,  as  against  creditors,  hy  a  bill  of  sale,  without  further  delivery. 
Sanhorn  v.  Kittredgo,  20  Vt.  G32;  50  Am.  Dec.  58;  Hutchios  e.  Gilchrist,  23 
Vt.  82;  Birge  r.  Edgerton,  23  Vt.  291;  Fitch  v.  Burke,  3S  Vt.  G83;  Sterling  v. 
Baldwin,  42  Vt.  30li;  Ross  v.  Draper,  55  Vt.  404;  45  Am.  Rep.  024;  King.sley 
V.  White,  57  Vt.  505.  Ross,  J.,  in  delivering  the  opinion  of  tlio  court  in  tlie 
case  last  cited,  said:  "To  hold  that  such  property  comes  within  the  operation 
of  the  ordinary  rule  would  practically  preclude  any  sale  of  it  which  would  he 
valid  against  attachment  by  the  creditors  of  tho  vendor.  But  in  Cobb  r.  Has- 
kell, 14  Mf.  30.3,  31  Am.  Dec.  50,  wliere  the  vendor  of  lumber  lying  in  dififer- 
ent  piles  in  a  mill-yard  brought  the  vendee  in  sight  of  it,  and  said,  "Tliere  is 
the  luml^er,"  and  to^d  him  to  take  it  away  and  make  the  best  of  it,  and  the 
vendee  went  away  and  left  it  as  it  waa,  and  exercised  no  ownership  over  it  for 
two  months,  it  was  held  not  to  have  been  delivered,  as  against  attaching  cred- 
itors of  the  vendor. 

If  a  vessel  is  abroad  at  the  time  of  ita  sale,  it  will  be  suCBcient  if  it  be 
delivered  within  a  reasonable  time  after  its  arrival.  Thuret  v.  Jenkins,  7  Mart. 
(La.)  318;  12  Am.  Dec.  508.  But  a  boat  upon  the  water  will  not  pa-ss,  as 
again.it  a  subsequent  purchaser,  by  an  oral  sale  witliout  delivery.  Veazio  v. 
Somcrby,  5  Allen,  280. 

The  delivery  of  warcliouse  receijjts  for  bulky  articles  stored  in  the  ware- 
hou.4e  is  a  sufficient  delivery  of  such  articles.  Usage  has  made  the  possession 
of  these  documents  cfjuivalent  to  the  possession  of  the  property  itself.  Horr  r. 
Barker,  8  Cal.  G(X);  Benton  v.  Curyea,  40  II*.  320;  Cool  r.  Phillips,  GO  111.  217; 
Bn>a<lwcll  r.  Howard,  77  111.  305;  National  Bank  v.  Walbridge,  19  Ohio  St. 
419;  (;il>«on  r.  Stevens,  8  How.  384.  And  the  delivery  of  the  keys  of  a  ware- 
hoUHe  in  which  bulky  articles  are  stored  is  a  sufficient  delivery  of  the  articles 
themselves.     Niagara  Co.  National  Bank  v.  Lord,  33  llun,  557. 


407  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §  153 

branded.^     Property,  when  sold,  may  be  in  the  posses- 
sion of  a  third  person,  as  bailee  for  the  vendor.     If  the 
bailment  be  such  as  to  give  the  bailee  the  right  to  hold 
the  property  for  a  definite  time,  the  delivery  of  posses- 
sion to  tlie  vendee  must  be  omitted  from  Decessit}^ 
But  even  if  the  bailment  be  for  no  definite  time,  it  is 
sufficient  that  the  bailee  be  notified  of  the  sale;"  and 
if  he  be  at  a  distance,  it  is  probable  that  the  parties 
will   be   allowed  necessary  time  in  which  to  convey 
him  the  information.^     S.  sold  certain  horses  on  the 
eighteenth  day  of  October  to  W.,  which  were  then 
on  a  mountain  range  belonging  to  D.,  and  were  being 
there   cared   for  by  liim   for   S.,  and   S.,  in    anticipa- 
tion of  the  sale,  directed  D.  to  get  up  the  liorses  for 
W.,  and  at  the  time  of  the  sale  told  W.  of  the  direc- 
tion thus  given  D.,  and  D.,  on  November  12th,  wrote  to 
W.  to  come  for  the  horses,  as  they  had  been  gotten  up 
for  him,  and  W.  answered  that  he  wanted  D.  to  keep 
them  for  him  during  the  winter.     This  D.  did,  and  the 
horses    remained   in    his  possession  until  the   ensuing 
spring,  when  they  were  attached  as  the  property  of  S. 
They  were  held  not  liable   to  sucli  attachment,  in  an 
opinion  in  which  the  court  said:  "When  property  is  so 
situated  that  the  buyer  is  entitled  to  and  can  rightfully 
take  possession  (jf  it  at  his  pleasure,  he  is  considered 

»  Walilcu  r.  Munlock,  23  Cal.  540;  83  Am.  Dec.  135. 

»  Moore  r.  Kelly,  5  Vt.  34;  2(i  Am.  Dec.  283;  Burgo  v.  Cone,  6  Allen,  412; 
Barney  v.  lirown,  2  Vt.  374;  I'J  Am.  Dec.  270;  Breckeuritlgo  r.  Anderson,  3  J. 
J.  Marsh.  710;  Carter  v.  Willar.l,  10  Pick.  1;  Harding  r.  Jones,  4  Vt.  4(52; 
Pierco  v.  Chapman,  8  Vt.  33'J;  Kroesen  r.  Steevens,  5  Leigli,  434;  Fryo  v. 
Shepler,  7  Pa.  St.  01;  RoberU  r.  (luernrtcy,  3  Crant  Caa.  237;  llow  v.  Taylor, 
62  Mo.  592;  Butt  r.  CaMwell,  4  Bibb,  458;  Lyndo  v.  Melvin,  11  Vt.  (583;  34 
Am.  Dec.  717;  M<.rgan  v.  Miller,  02  Cal.  402;  llildreth  v.  Fitts,  53  Vt.  U84; 
Stono  V.  Taft,  58  N.  II.  445;  Wing  v.  Peabody,  57  Vt.  10;  Campboll  v.  Hamil- 
ton, C3  Iowa,  203;  Linton  v.  Butz,  7  Pa.  St.  80;  47  Am.  Dec.  501;  Potter  v. 
Wa«bburn,  13  Vt.  558;  .37  Am.  Doc.  015. 

»  Kicker  v.  Crosa,  5  N.  II.  570. 


I  i:.3    PKUSDNAL  PROrERTY  SUBJECT  TO  EXECUTION.    40S 

as  luivliiij^  iu"tually  received  it  ns  the  Ktatutc  ri'((uires. 
Accord iiiijly,  it  lias  iKtu  lirld.  il"  the  vcndoi-  of  ^oods 
iu  the  care  and  keeping:;  of  a  third  jutsoii  (hreets  him  to 
tK-hvi>r  tliein  to  thi>  vtndtt\  and  tiie  |>ar(y  liolchnj^  the 
goods,  on  notice  and  api>h(a(i(»n  of  tlie  vendee,  assents 
to  retjiin  the  j^oods  tor  liim,  it  is  a  deUvcry  Builicient 
to  transfer  the  title  and  to  satisfy  the  statute.  Means 
V.  Williamson,  ',\7  ^le,  550.  l^y  delivering:  the  bill  of 
Side  to  the  plaintiff,  ami  nivini^  direction  to  his  a^ent 
to  pfct  the  horses  toii^ether  and  keep  thcni  for  the 
j^laintitV,  to  whom  they  had  i>een  sold,  Sotcher  trans- 
ferred them  to  the  plaintiif;  anil  when  the  agent,  in 
obedience  to  the  directi«)n  which  he  had  received,  col- 
lected them  together  in  his  pasture  for  the  plaintiff, 
and  wrote  to  him  that  they  were  ready  for  him,  and  to 
come  and  take  them,  and  the  plaintiff  employed  the 
a*4ent  to  take  chari^e  of  them  and  winter  them  for  him, 
this  was  an  actual  delivery  of  the  property,  so  far  as 
the  nature  and  condition  of  the  property  admitted  of 
it."^  In  Vermont,  logs  on  the  lands  of  another  than 
the  owner,  and  not  in  the  visible  po.ssession  of  any  one, 
may  be  transferred  without  any  perceptible  change  of 
possession. '"  So  property  in  a  warehouse,  on  storage, 
if  ascertained  and  separated  from  other  property,  and 
formally  delivered  to  the  vendee,  may  be  left  by  him 
in  the  same  jdacc.^  Where  twelve  thousand  bushels 
of  charcoal  in  pits  were  sold,  and  the  purchaser  a  few 
days  after  tlie  sale  sent  a  person  to  the  pits,  and  caused 
them  to  be  severally  marked  with  the  purchaser's  name, 
and  the  person  so  sent  remained  in  charge  for  a  fort- 

>  WiUiama  r.  Lcrch,  50  Cal.  3.^4. 

»  Mcrritt  ».  Miller,  13  Vt.  410;  Saiiborn  r.  Kittredgc,  20  Vt.  C'2'2;  50  Am. 
Dec  58;  Hutchimi  r.  (Jilchriat,  2.'}  Vt.  8J;  Kingsky  v.  White,  57  Vt.  505. 
*  Cartwright  v.  I'lujunuc,  7  Cal.  261. 


409  PERSONAL  TROPERTY   SUBJECT  TO  EXECUTION.        §154 

niglit,  when  he  left,  requesting  a  neighbor  to  look  after 
the  property,  it  was  held  that  there  had  been  a  sufficient 
change  of  possession/  The  sale  by  one  of  several  joint 
owners  also  furnishes  an  exception  to  the  rule  that 
there  must  be  a  change  of  possession.  If  the  co-tenant 
selling  is  in  the  sole  possession,  he  ouglit  to  give 
possession  to  his  vendee;  but  if  the  other  co-tenants  are 
in  possession,  the  vendor  has  no  right  to  take  it  from 
them.  He  may,  therefore,  from  necessity,  make  a 
valid  sale  without  placing  the  property  in  the  custody 
of  his  vendee.^  Property  exempt  from  or  not  subject 
to  execution  cannot  enable  its  owner  to  obtain  a  de- 
lusive credit,  nor  can  its  secret  sale  by  him  operate  as 
a  fraud  on  his  creditors,  since  they  have,  under  no  cir- 
cumstances, a  right  to  seize  it  against  his  will.  They 
can  take  no  advantage  of  the  fact  that  its  sale  was  not 
accompanied  nor  followed  by  a  corresponding  change 
of  possession.^  So,  because  he  cannot  possibly  be  de- 
frauded by  it,  a  creditor  will  not  be  permitted  to  at- 
tack a  sale,  for  want  of  a  change  of  possession,  when  he 
knew  of  such  sale  at  the  time  it  was  made,  and  derived 
a  l)enelit  from  it,*  or  where,  having  like  knowledge,  he 
thereafter  l)ucame  a  creditor  of  the  vendor.'' 

Ji  164.  When  the  Change  of  Possession  must  Com- 
mence.—Li  many  of  thtj  decisions  under  the  statute 
of  Ehzabetli,  it  is  said  tliat  possession  must  accompany 

>  Togii.iiii  r.  Kyle,  17  Nuv.  20'.»;  45  Am.  Rep.  442. 

»  Freeiiiaii  <.ii  ('..tfiwmy  uikI  P.irtition,  «ccs.  1G7,  219;  Brown  v.  Coleman. 
24  111.  G;W;  Ik'.iuiiiont  r.  Oano,  14  M:w8.  400;  Cushing  »-.  Hrecil,  14  Allen,  380; 
y2  Am.  Doc.  777;  Crilcy  v.  \'tuw\,  52  .Mo.  445. 

»  I'iittcii  r.  Smith,  4  Conn.  4.VJ;  10  Am.  Dec.  100;  Foster  f.  McGregor,  11 
Vt.  r>95;  M  \m.  Dec.  7KI;  Anthony  v.  Wa«le,  I  Uunii,  110;  Morton  f.  lUgan, 
5  Bu»h,  .1:M;  Dorhy  r.  Weyri.h.  8  Neb.  174;  .'JO  Am.  llci).  827;  Jowctt  v. 
Guycr.  3«  Vt.  2lS;  (ioorgo  r.  liiwjwitt,  54  Vt.  217. 

♦  Pamonii  r.  Hatch,  C'J  N.  H.  34.3. 

^  Vaa  Meter  t'.  Eatill,  lH  Ky.  450. 


§  i:.4         TKllSONAL   rUOrKUTY   SITRIECT  TO   KXECUTION.  410 

tho  (Kvil.  Ill  some  o['  the  stati'  stiitutos,  tlio  roquiro- 
iiioiit  is  that  tlio  possession  lu*  Immcdialc ;  uirKt  otlu-rs, 
it  must  Ito  takiMi  witliin  a  ndjiOiKihlc  tiiiu'.  Tlu.'  con- 
struotioii  ^ivrn  those  diiroivnt  stiitutcs  is  sul)stantially 
identical.  When  the  sale  is  made  tlie  veiuleo  must 
proci-ed  to  take  jiossessioii  of  thi'  jiro[)erty  as  soon  as 
praetieahle,  exereisinii^  tlio  same  de«^ree  of  diUgcnco 
that  usually  is  employed  hy  vendees  of  property  of  a 
similar  eharai-ter  and  in  a  similar  situation.  If  he 
does  this,  his  ])osscssion  accompanies  the  sale  within 
tho  meaniuLC  of  tho  doeisions.'  "i>y  an  immediate 
delivery  is  not  meant  a  delivery  inatautcr;  but  the 
ehanietiT  of  the  property  sold,  its  situation,  and  all 
the  eireumstanees  must  be  taken  into  consideration 
in  determininij^  whether  there  was  ;i  delivery  within  a 
reasonable  time,  so  as  to  meet  the  requirement  of  the 
statute;  and  this  will  often  bo  a  question  of  fact  for 
the  jury. '"  llenee,  if  a  sale  of  a  stock  of  goods 
twenty  miles  distant  be  made  at  nine  o'clock  in  the 
evening,  possession  thereof  taken  [tursuant  t(^  such 
sale  at  four  o'clock  the  next  morning  is  immediate, 
within  the  meaning  of  the  statute.^  Generally  the 
failure  to  take  possession  in  pursuance  of  a  sale,  either 
immediately  or  within  a  reasonable  time  after  such 
sale,  is  held  to  make  such  sale  either  conclusively  or 
prima  facie  fraudulent.  The  sale  liaving  been  thus 
tainted  with  fraud,  the  (juestion  ari.ses  whether  this 
taint  n]ay  be  removed  by  a  possession  subsequently 
taken. 

The  better  rule,  we  think,  is,  that  when  the  taking  of 

'  Ingratiam  r.  Wheeler,  0  Conn.  277;  Mea<lo  r.  Smith,  10  Conn.  347;  Wilt 
r.  Fraukhn,  I  Bian.  5J1;  2  Am.  Dec  474;  Stato  r.  King,  44  Mo.  238. 
*  Stcpbcos  r.  (jrorliarn,  5  Col.  227;  Carpoatur  v.  Clark,  2  Nov.  246. 
»  Klcinacbmidt  r.  McAudrewH,  117  U.  S.  282. 


411  PERSONAL  TROPERTY   SUBJECT  TO  EXECUTION.        §  154 

possession  has  been  so  deferred  tbat  the  sale  must  be 
denounced  for  constructive  fraud,  its  character  is  ir- 
retrievably determined,  and  possession  afterwards  taken 
gives  no  life  or  validity  to  that  which  was  before  null 
and  void.^  Doubtless,  however,  the  weight  of  the  au- 
thorities is  against  the  rule  as  we  have  stated  it.  They 
maintain  that  a  sale  is  never,  because  of  a  want  of  a 
change  of  possession,  void  as  against  creditors  gener- 
ally, but  only  against  those  who  have  citlier  reduced  their 
debts  to  judgments,  or  have  in  some  manner  obtained 
liens  for  the  enforcement  thereof  If,  when  the  judg- 
ments are  rendered,  or  the  attachment  or  other  lions 
obtained,  the  sale  has  been  consummated  by  taking- 
possession,  it  must,  according  to  these  authorities,  be 
treated  as  valid,  though  such  possession  did  not  accom- 
pany the  sale."  These  authorities  seem  to  ignore  the 
chief  object  sought  by  tlie  statutes  and  decisions  re- 
quiring the  change  of  possession  to  accompany  the  sale. 
That  ol)ject  was  to  suppress  fraud  by  preventing  vendors 
from  obtaining  a  false  and  delusive  credit  by  remaining 
in  apparent  ownership  of  property  in  wliich  they  had 
ceased  to  have  any  interest.  The  most  etiuitable  rule 
upon  the  subject  is  that  enacted  in  section  3440  of  the 
present  Civil  Code  of  California,  as  follows:  "Every 
transfer  of  personal  j)roperty,  other  than  a  thing  in 
action,  or  a  ship  or  cargo  at  sea  or  in  a  foreign  port, 

>  Gilmon  r.  Love,  4  Ha.  217;  Carpenter  v.  Mayor,  5  WatU,  483;  Hackett 
V.  Manlove,  14  Cal.  8.");  Clieiicry  v.  Palmer,  G  Cal.  ll'J;  (>.")  Am.  •><?.  4<.r^; 
E.linoinlfloii  r.  Hyl''.  2  Saw.  20'.»:  7  Nat.  Hank.  Ko;,'.  4;  In  re  Morrill.  2  Saw. 
3o9;  8  Nat.  bank.  licg.  121);  Franklin  v.  (;umer8eU,  9  Mo.  App.  80;  Watson 
r.  Rfxlgorn,  .W  Cal.  401. 

»  Kcn.lall  r.  Sunpnon,  12  Vt.  ni.'.;  Rea.l  r.  WiUon,  22  111.  .S77;  71  Am.  !>oe. 
ir>9;  Calkum  r.  Lockwocnl,  10  Conn.  270;  41  Am.  Dec.  143;  IMako  v.  Oravi-H, 
18  Iowa,  312;  Clute  r.  Stotl,  G  Nev.  355;  CruiksbankH  r.  CogHwell,  20  111.  300; 
GilUrt  r.  Decker,  53  Conn.  401;  SyJnor  v.  (ice,  4  Leigh,  635;  Hall  v.  C.aylor, 
37  Coun.  550. 


§  KVi        TKliSONAL  TUOrKUTY   SURTEri'  TO   KXECmON.  IIJ 

aiul  tvciv  li«'n  tluTfoii,  other  than  a  iiiortjj^acjo  uhcii 
nlK>\Vf»l  l)V  l:i\v,  ami  a  (•Diitracl  of  l)()ttinniy  or  iv- 
spoiuU'utia,  is  (H)m'lusivrly  juvsumt'il,  if  inailo  by  a 
norson  liavin;j;  at  thi^  tim«*  iho  possossion  or  control  of 
tht'  pn»iicrty,  and  n«)t  acfoniiKiniid  l»y  an  ininucliato 
il'jlivorv,  an<l  followed  liy  an  actual  and  coiitinucil  chanLJc 
of  jx^sscssion  of  tho  thini^s  transferred,  to  be  fraudnlent, 
antl  tlurefore  void,  aixainst  those  who  are  his  creditors 
while  he  remains  in  possession,  and  the  successors  iti 
interest  of  sucli  i-reditors,  and  against  any  persons  on 
whom  his  estate  devolves  in  trust  for  the  benefit  of 
othci-s  than  himself,  and  against  purchasers  or  encum- 
brancers in  good  faith  subse(pu'nt  to  the  transfer."  But 
even  in  those  states  where  the  want  of  an  immediate 
delivery  cannot  be  supplied  by  a  subsequent  one,  there 
is  an  inclination  to  avoid  a  rigid  application  of  the  rule. 
Hence  where  furnitun^  was  purchased,  and  the  vendee 
took  no  possession  until  at"ter  two  or  three  weeks,  dur- 
ing which  he  was  hunting  for  a  suitable  house  to  live 
in,  the  court  refused  to  award  the  property  to  a  creditor 
of  the  vendor  whoise  judgment  and  levy  were  eight  or 
nine  months  sul)se(iuent  to  the  Side.^ 

§  155.  What  is  a  Sufficient  Change  of  Possession. 
— Tiie  response  to  tliis  (question,  S(j  far  as  it  can  be 
expressed  in  general  terms,  is  that  the  change  of  pos- 
session must  be  open,  visible,  actual,  and  substantial, 
so  that  persons  in  the  habit  of  .seeing  the  property  will 
infer  that  a  change  of  ownership  has  taken  place.' 
"  In  no  case  that  we  are  aware  of  has  the  supreme 

>S  nith  r.  St45rii,  17  Pa.  St.  .V>0.  See  oluo  McVicker  r.  May,  .T  Pa.  St.  224; 
45  Am.  Doc.  G37. 

'  P»ockwfK>l  r.  ('(.llamcr,  14  Vt.  141;  Kirtlaiid  r.  Snow,  20  Conn.  2.3;  Ilwif- 
■iniili  r.  CoiHJ,  0  Wliart.  53;  Ca<lbury  r.  Nolcu,  5  Pa.  St.  320;  Cook  v.  Mann, 
GCoL  21. 


413  PERSONAL  PROPERTY   SUBJECT  TO  EXECUTIOX.        §  155 

court  laid  down  a  rule  requiring  less  than  that  the 
purchaser  must  have  that  possession  which  places  him 
in  the  relation  to  the  property  which  owners  usually 
are  to  the  like  kind  of  property."^  "The  change 
necessary  is  only  one  which  the  creditors,  upon  reason- 
able inquiry,  can  ascertain,  —  such  a  change  of  the 
possession,  or  such  a  divesting  of  the  possession  of  the 
vendor,  as  any  man  knowing  the  facts,  which  could  be 
ascertained  upon  reasonable  inquiry,  would  be  bound 
to  know  and  understand  was  the  result  of  a  change  of 
ownership,  —  such  a  one  as  he  could  not  reasonably 
misapprehend."^  "The  vendee  must  take  the  actual 
possession,  and  the  possession  must  be  open,  notorious, 
and  unequivocal,  such  as  to  apprise  the  community,  or 
those  who  are  accustomed  to  deal  with  the  party,  that 
the  goods  have  changed  hands,  and  that  the  title  has 
passed  to  the  purchaser.  This  must  be  determined  by 
the  vendee  using  the  usual  marks  and  indicia  of  owner- 
ship, and  occupying  that  relation  to  the  thing  sold 
which  owners  of  property  generally  sustain  to  their 
own  property."^  "It  was  intended  that  the  vendee 
should  immediately  take  and  continuously  hold  the 
po.s.session  of  the  goods  purchased,  in  the  same  manner, 
and  accom])aniLd  with  such  plain  an<l  unmistakable 
acts  of  po.ssession,  control,  and  ownership,  as  a  prudent 
bona  fide  purchaser  would  do  in  the  exercise  of  his 
rights  over  the  j)ro})(rty,  so  that  all  persons  might 
have  notice  that  he  owned  and  had  possession  of  the 
property."*  "The  jiossession  of  the  vendee  must  bo 
open  and  unequivocal,  carrying  with  it  tlu.'  usual  marks 

«  Woo<U  r.  HuK'>K-y.  29  Cal.  472. 

»  SU-plM.-niMm  r.  Clark,  '2^)  Vt.  (i27;  HurrowH  r.  RUbbin«,  20  Vt.  C'O. 
•(naflin  r.  Kf«ciilHrg,  42  M<..  44'.l;  AW  Mo.  ri<)3;  97  Am.  Dec.  XW;  Loscni  r. 
Hemfcir.l,  44  .Mo.  .123;  All.-n  v.  .Majn»oy,  2  Abb.  GO. 
«  Lay  V.  Neville,  23  Cal.  602. 


§155        PERSONAL   I'KorKUTY   SUIUEtT  TO   KAEOUTION.  114 

and  indn-atioiis  <»!'  (iwiui'sliiji  l>y  tin-  ncikIcc.  It  must 
Vh.»  such  as  to  jjfivr  rvidrncf  (»»  tin-  woiM  nf  tlic  claiiii  »»!' 
tlio  luw  owiur.  I!<'  iiiu>t.  ill  ntlnr  words.  l»i'  in  tlio 
usunl  I'llatioM  to  tlu'  pro|Krty  which  owners  of  «;oods 
jHH'Upy  to  tlu'ir  j»ro|>orty.  'IMiis  possession  must  l)e 
c«)iitinuous,  —  not  taki'ii  to  hi'  surrendcrrd  liack,  not 
formal,  l»ut  suhstantial."'  "Thtrc  must  l»f  such 
changi'  in  tho  ajtparont  custody  of  tlie  i)roi)erty  as  to 
put  one  dcahuL,'  witli  the  vendor  with  respect  to  it 
upon  iiujuirv,  or  sucli  at  least  as  mii^jht  sujjji^ost  a 
chanij;o  of  (»wncishii».'  '  It  is  not  sufHcient  that  the 
vendee  assume  control  of  the  ]>i()i)erty  in  such  a  man- 
ner that  the  vendor  cannot  IcL^ally  interfere  with  it,  if 
the  transaction  is  "wantinjj^  in  the  puhlicity,  openness, 
or  notoriety  which  would  tend  to  warn  other  inemhers 
o\'  the  community,  or  advertise  the  claim  of  the  ven- 
dee."^ The  marking  of  goods  is  not  equivalent  to  a 
change  of  ])f»ssession.*  "]*urehasers  must  leain  and 
understand  that  if  they  purchase  property,  and  without 
a  legal  excuse  permit  tho  possession  to  remain  in  j'act 
or  apparently  and  visibly  the  same,  or  if  changed  lor  a 
brief  period,  to  be  in  fact  or  apparently  and  visibly  re- 
stored, and  thereafter  in  fact  or  apparently  and  visibly 
continued  as  before  the  sale,  they  hazard  its  loss  by 
attachment  for  the  debts  of  the  vendor,  as  still,  to  the 
view  of  the  world  and  in  the  eye  of  the  law,  as  it  looks 
to  the  rights  of  creditors  and  the  prcventiiui  of  fraud, 
Ids  property.  "^  "The  j»urpose  of  the  statute  is,  that 
there  shall  be  such  a  change  of  possession  as  will  give 

•  Stcveiu  r.  Innin.  l.">  Cal.  SOC;  7<;  Aiii.  Dec.  500;  Englea  v.  Marahall,  19 
CaL  320;  CahfK.n  r.  M.ir.sliall.  'St  Cal.  l'J7. 

»  Hcsthal  r.  Myles,  511  Cal.  iiZi. 

*  IliiJ. 

•  8U!wart  r.  Nelson.  78  Mo.  r>22. 

*  Kortou  r.  Doolittle,  32  Coui.  311. 


415  PERSONAL  PROPERTY  SUBJECT  TO   EXECUTION.        §  155 

to  parties  dealing  with  the  seller  or  buyer  notice  of 
the  transaction.  It  is  such  transfer  of  dominion  over 
the  property  as  to  impart  notice  to  persons  dealing 
with  reference  to  the  property  that  the  title  has  been 
transferred,  or  such  possession  as  will  put  such  persons 
in  possession  of  such  facts  as  will  lead  to  inquiry  as  to 
the  ownership.  It  is  sometimes  said  that  the  posses- 
sion must  be  such  as  to  be  notice  to  the  world.  This 
does  not  mean  notice  to  the  public  generally,  but  to 
those  who  propose  to  purchase  the  property  or  deal 
with  reference  to  it."^  Merely  changing  the  name  of 
the  store  in  whicli  a  stock  of  goods  is  kept  is  not  a 
sufficient  change  of  possession.^  In  ^lerrill  v.  Hurl- 
burt,  G3  Cal.  494,  the  property  sold  was  a  (quantity  of 
loose  ha}'  stored  in  a  barn  owned  by  the  vendor.  The 
vendee  examined  the  hay  at  the  time  of  the  sale,  and 
there  was  a  verbal  delivery.  The  vendee  also  placed 
a  man  in  charge  of  the  property,  but  the  barn  con- 
tinued in  the  possession  and  under  the  control  of  the 
vendor.  A  portion  of  the  hay  was  subsequently  re- 
moved, but  the  part  in  controversy  remained  in  the 
barn  until  it  was  attached  by  a  creditor  of  the  vendor, 
about  tliree  months  after  the  sale.  Tlie  trial  court 
found  that  there  was  not  an  immediate  delivery,  and 
an  actual  and  continued  change  of  possession,  and  the 
supreme  court  held  that  the  finding  was  justified  by 
the  evidence. 

The  possession  of  tlie  vendee  must  bo  exclusive,  and 
not  in  (•<,iiiiii..ii  with  tlie  vendor.^  "There  must  Ijo  a 
bona  fide  subsUiritial  cliangc  of  possession.     It  is  a  mere 

'  lJe<Te  r.  N(;<-<11ch,  0.')  Iowa,  10.'). 

*  Kl<-<!  r.  lU;itz«-iilHrK'<;r,  'i:\  W.  \'n..  749. 

»  Braun  r.  Kelly,  4:J  I'/i.  St.  ia»;  W  Am.  Pec.  T^:A;  3  flmnt  Cas.  144; 
.SUrltl-r  r.  W.-mI,  24  Tex.  C22;  Kendall  t>.  .Sampson,  I'J  Vt.  515;  WtK)tea  v. 
CUrk,  23  MiM.  75. 


I  IM        PKUSONAL  PROrFJ^TY  SUWElT  IX)  EXECUTION.         410 

inoc-kiTV  to  juit  in  anotluT  prrs(M»  1<»  Utrj)  possession 
jointly  witli  tjjo  tornur  «t\vnt'r."  '  If  tlio  possession 
of  the  vendor  and  vemlee  after  tlie  sale  "is  mixed  or 
et>ncurrent.  it  is  iiisulHeient  tt>  indicate  an  open  and 
complete  transfer  «>f  the  possession."' 

>  lUU.  r.  Clcmtoa.  1(1  S.rj;.  *.  11.  JJS;  13  Am.  D.v.  OSl;  \V,.r<lall  r.  Sinitli, 
1  Caiup.  333. 

'  Woniwii  r.  Kr.iiner.  73  Ta.  St.  .^S<i;  Suimior  r.  Dalton,  M  N.  U.  'J'.t.'i; 
Alien  r.  M.iMcy.  17  Wall.  3.M;  I'lai-sU-.l  r.  H.-liiuvs,  M  N.  M.  'Jia  In  Hull 
r.  .SnjHwortli,  -18  (.'oun.  -.'►8,  40  Am.  licyt.  1(»7,  tlio  vi-inloo  iMiiployeil  liy  tlio 
vcmlur  on  tho  latt«r"j«  farm  agr»'i<l  to  buy  him  a  horse,  ami  apjily  hi.4  wa({0!t  in 
{tayinciit.  Two  yiars  aftorwanl-t  tho  vi-ndor  boM  ami  ilclivcnul  tho  honto  to 
tho  vciulec,  taking  hisi  rocoiiit  in  full  of  wages  oariiod  in  payment.  Tho 
veuilco  continuitl  in  tho  vemlor'a  umployinint  on  tho  farm,  keeping  tho  horso 
in  tho  voaJor's  Btahlc,  taking  care  of  it,  breaking  it,  an<l  bhooing  it,  (laying 
the  venilor  for  the  feed.  It  waji  hehl  tliat  there  was  not  a  HUtlicieiit  change  of 
p<.Msc!uiou  as  against  tho  creditors  of  tho  vendor.  But  boo  Webstter  r.  Ander- 
son, 42  Mich.  ;>.'>4,  .3(3  Am.  Rop.  4.'i'2,  where  it  waa  agreed  between  a  farmer 
and  hid  lalxircr  that  the  latter  Hhould  accciit  certain  hog.i  in  payment  for  hia 
ijcn'iccs.  The  hogs  were  pointed  out,  but  were  to  remain  in  the  pauturo  with 
other  hogs  until  an  opportunity  HhouM  bo  found  for  Belling  thiui.  It  w.-ia 
held  that  this  was  a  Bullkient  transfer  of  tho  po.SHOssion  to  couBtituto  a  delivery 
under  tho  circumstances.  Cooley,  J.,  in  delivering  tho  opinion  of  tho  court, 
said:  "It  waa  all  the  delivery  that  could  Well  h.ivc  been  niado  under  the  cir- 
cumatances,  without  rctpiiring  .\ndcrson  to  renu>vc  the  hogs  from  tho  farm 
where  ho  waa  employed  to  some  «ither  place  >\  hero  they  would  have  boon  less 
in  his  possession  than  where  tlicy  were;  and  for  tliia  there  could  havo  been 
no  Bufficicut  ruason."  In  Roberts  r.  RadclitT,  35  Kan.  502,  a  lawyer  and  real 
cstato  agent  bought  a  stock  of  millinery  gooda  in  a  distant  city,  and  returned 
homo  on  tho  same  day,  without  moving  tho  goods,  changing  the  uign  on  tho 
store,  or  giving  any  notice  to  tho  public  that  there  had  boon  a  change  of 
jiropricttirship,  but  leaving  to  manage  the  new  business  tho  same  persons  who 
had  lH.-cn  in  char(i;e  before  the  side.  And  it  was  held  that  there  was  Huflicient 
"  ■•  :  •  iico  to  justify  tlio  jury  in  fmiling  tho  nalo  frauiluleut  a.s  against  tho 
..tors  of  the  vendors.  .So  in  Wolf  r.  Kahn,  02  Miss.  814,  where  tho  busi- 
ue-.»  aft«:r  tho  conveyance  waa  carried  on  just  as  l)eforo  tho  sale,  and  thero 
was  nothing  to  indicate  that  the  former  clerk  had  l>ecome  tho  owner,  au<l  tho 
former  owner  a  clerk,  but  fo  far  aa  tho  public  could  know  from  appearances, 
the  ventlor  waa  still  the  «>wncr  of  tho  business,  and  the  fact  of  tho  sale  was 
known  to  two  {Ksrsons  only  Wsides  tho  parties  to  it,  tho  si^m  over  the  store 
rvrnaiuing  the  same,  ami  the  license  of  the  former  owner  remaining  postc<l  up 
in  the  store  as  Wforc  tho  sale,  it  was  held  that  there  was  not  suOicient  evidenco 
of  a  change  of  iKMMcssion  as  against  tho  vendor's  crctlitors.  Rut  in  Ware  v, 
Hirscb,  I'J  111.  App.  274,  where  ceruin  crcdit<^ir8  of  a  debtor  in  failing  circum- 
Btaac«s  bought  out  bis  st«ro  and  goods,  and  put  one  of  their  nuutl>cr  in  posses- 


417  PERSONAL  PROPERTY   SUBJECT  TO  EXECUTION.        §  155 

It  may  be  that  the  vendor  and  vendee  are  occupants 
of  the  same  premises,  and  even  members  of  the  same 
family.  If  such  be  the  case,  it  will  require  great  care 
to  give  a  transfer  from  one  to  the  other  that  notoriety 

sion  thereof,  who  opened  a  new  set  of  books,  took  down  the  debtor's  sign, 
employed  the  former  clerks,  and  paid  the  rent,  etc.,  it  was  held  that  there 
waa  sufiQcient  evidence  of  a  change  of  possession  to  satisfy  the  requirements  of 
the  Illinois  statute.  In  Wilson  r.  Hill,  17  Nev.  401,  the  mortgagor  of  3124 
cords  of  woo<l  lying  on  the  roadside  went  with  the  mortgagee  to  the  place, 
and  said  to  liiiu:  "There  is  the  wood.  I  deliver  it  to  you  as  security  for  the 
money  loaned."  The  wood  was  not  marked,  nor  was  any  one  put  in  charge  of 
it,  but  the  mortgagee  went  occasionally  to  see  that  no  one  interfered  with  it. 
It  was  held  tliat  there  \W3  not  a  sufficient  change  of  possession  as  against 
creditors.  In  Betz  r.  Conner,  7  Daly,  550,  the  purchaser  at  execution  sale 
left  the  property  after  the  sale  in  the  same  premises,  where  it  was  used  by  the 
execution  debtor  as  it  had  been  used  by  him  before  the  sale,  and  over  which 
he  exercised  the  same  control  as  before,  except  that  after  the  sale  he  acted  as 
agent  of  the  purchaser;  and  it  was  held  that  the  change  of  possession  was 
constructive  only,  and  not  actual,  and  that  the  sale  was  therefore  presump- 
tively fraudulent  as  to  the  creditors  of  the  former  owner.  In  McCarthy  r. 
McDenuott,  10  I>aly,  450,  the  vendor,  after  the  execution  and  delivery  of  a 
bill  of  sale  of  the  furniture  of  a  Ixiarding-house,  went  with  t!io  purchaser  to  the 
house,  who  stated  to  him  that  he  took  possession  of  the  property,  an<l  at  the 
same  time  delivereil  to  the  vendor's  wife  a  writing  constitutin;j;  her  a  bailee 
of  the  proiH.rty;  but  there  was  no  change  in  the  apparent  ownership,  and 
nothing  to  disclose  the  fact  that  the  title  ha<l  been  transferred.  It  was  hel  1 
that  the  sale  was  void  as  against  creditors,  and  that  it  w;is  error  to  submit  the 
question  of  change  of  possession  to  the  jury.  In  Bcntz  r.  Rockcy,  09  Pa.  St. 
"1,  the  vendor  was  the  lessee  of  a  tannery,  and  after  the  sale  the  vendee  paid 
the  rent  for  the  remainder  of  the  year,  but  the  vendor  remained  on  tlie 
premises  as  before,  and  worked  out  and  sold  tlie  stock,  paying  the  money 
reccircd  therefor  to  tlio  vendee.  It  was  held  that  tliero  was  not  sufficient 
change  of  possession  to  make  tlie  sale  valid  as  against  creditor.s.  But  in 
Crawfortl  r.  Davi.-*,  99  Pa.  St.  570,  tlje  vcnilor  was  an  aged  and  inlirm  man 
residin;^  on  a  farm  under  a  parol  lease,  liis  son  residing  with  him.  IJy  reason 
of  infirmity  and  jMiverty  tlie  father  w.is  unable  to  cirry  on  tlio  f.irm,  and  ho 
therefore  sold  all  tlio  property  on  the  farm  to  his  son,  in  consideration  of  tho 
veoJco's  agreeing  to  support  his  father  and  motlier  and  pay  the  rent.  Tho 
■OQ  after  the  sale  tfx)k  charge  of  tho  f.irm,  bought  and  put  a<lditional  stock  on 
it,  used  the  whole  of  it,  {laid  the  rent,  hUp|Hirte<l  his  father  until  he  died,  and 
continued  to  supfwrt  his  mother,  hire<l  and  pai-l  labor  to  work  the  farm,  and 
Ijvetl  upon  it  It  was  licM  that  the  trial  court  crrc<l  in  holding  that  tiie 
evidence  of  change  of  pofiaessiuu  was  not  nutficieut  as  against  cre<litorH  of  the 
vendor,  and  tho  NUpn-me  court  decided  that  tlio  case  ought  to  have  l»eon  left 
to  tho  jury  Ui  decide,  under  the  circumstances,  whether  tho  sale  waa  in  good 
faith  or  mer>.ly  colorable. 
Vol.  1.-27 


§  Km        rKRSONAL   rUOIM'.Rl'Y    SUBJECT  TO  EXECUTION.  418 

wliicli  will  warn  otlici-s  iA'  the  cliaiiL^t'  ol'  ownership. 
Ill  scHWt^  iiistimcos,  as  wlierr  tlu'  translrr  was  iVom  a 
parent  to  his  minor  thild.  it  has  hrcn  licld  that  the 
]>ossession  suhs(Hpicii(ly  held  \)y  llu»  lornu'r  must  he 
dccnied  the  possession  ni"  the  latter;  and  the  transfer 
was  therefore  sustained,  althouirh  no  notorious  or 
other  ajipaient  ehanj^e  of  possession  followed  the 
transfer.'  \\  hile  the  enforcement  of  the  rule  recjuir- 
ui«x  a  ehani^-e  of  possession  to  accompany  a  transfer 
may  occasion  some  hardship  when  the  transaction  is 
between  relatives  or  others  occupying  the  same  prem- 
ises, yet  it  ought  to  be  remembered  that  it  is  between 
jK^rsons  thus  related  c)r  situated  that  a  fraudulent  or 
simulated  transfer  is  most  likely  to  be  conceived  and 
attempteil  to  be  made  effective  against  creditors. 
Such  a  transfer  is  properly  viewed  with  suspicion,  and 
will  be  sustained  only  where  the  evidence  shows  that 
"the  vendee  assumed  such  control  of  the  property  as  to 
reasonably  indicate  a  change  of  ownership."""  If  the 
change  of  possession  is  not  sufficient  to  indicate  the 
change  of  ownership,  the  transfer  is  invalid  as  against 
creditors,  though  the  vendor  and  vendee  live  in  the 
same  house  ^  and  are  members  of  the  same  family.*  G., 
the  owner  of  certain  horses  and  cattle,  sold  them  to  P. 
on  Saturday.     On  Sunday  and  Monday  ensuing,  ohe 

»  Howard  r.  Williams,  1  Bail.  575;  21  Am.  Dec.  48.3;  Dodd  v.  McCraw,  8 
Ark.  83;  40  Am.  Dec.  301. 

*  Crawford  v.  Davis,  90  Pa.  St.  579;  McQure  v.  Forney,  107  Pa.  St.  414. 

*  Hull  r.  Sigaworth,  48  Conn.  '2.")8;  40  Am.  Rep.  1G7;  Lawrence  v.  Burnliam, 
4  Nev.  364;  97  Am.  Dec.  540.  In  this  case,  vendor  and  vendee  lived  in  <lifrer- 
ent  rooms  of  the  same  house.  They  ln-ld  common  possession  of  a  barn,  in 
which  the  vendor  had  grain.  After  selling  this  grain,  the  vendor  continued  to 
have  a  key  to  the  l)arn,  and  to  go  in  and  out  at  pleasure.  Tlie  grain  remained 
in  the  same  bin  as  before  the  8<ilc.  It  was  hehl  that  there  was  no  sufficient 
delivery. 

*  Stilea  r.  Shumway,  16  Vt.  435;  Jarvis  r.  Davis,  14  B.  Mon.  529;  Gl  Am. 
Dec  166. 


419  PERSON-U.  PROPERTY  SUBJECT  TO  EXECUTION.        §155 

stock  was  collected  together.  On  Tuesday  P.,  with  G. 
and  famih',  started  with  the  property  en  route  for  a 
distant  part  of  the  state,  G.  riding  one  of  the  horses 
he  had  sold,  and  his  family  accompanying  him  in  a 
wagon  drawn  by  another  horse  embraced  in  the  same 
sale.  When  they  had  proceeded  thirty  miles  on  their 
journey  the  stock  was  attached  as  the  property  of  G. 
It  was  held  that  these  facts  were  such  that  the  jury 
ought  to  have  found  the  sale  fraudulent,  and  its  verdict 
in  favor  of  the  vendee  was  vacated,  and  a  new  trial 
granted.^  The  vendee  must  not  leave  his  vendor  in 
possession  of  the  property  as  his  agent,"  nor  as  his 
warehouseman.^  If  the  vendee  was,  before  the  sale,  in 
possession  as  agent,  he  must  in  some  way  make  known 
to  the  public  the  change  of  ownership.^  Where  a  pur- 
chase is  made  of  a  store  or  other  place  of  business,  it  is 
not  necessary  that  the  vendor's  employees  be  excluded 
from  the  place.  If  the  vendee  takes  possession  by 
exercising  all  the  rights  of  a  proprietor,  and  by  so  con- 
ducting himself  toward  the  business  as  to  create,  in  his 
favor,  all  the  marks  of  ownership  usuall}"  existing  in 
favor  of  a  proprietor  of  similar  business  establishments, 
he  may  safely  re-employ  the  same  clerks  and  other 
assistants  which  were  formerly  in  the  service  of  his 
vendor.^  Nor  is  the  vendor  absolutely  excluded  from 
the  service  of  the  vendee.  The  vendor's  continued 
connection  with  the  business  must  always  be  a  sus- 
picious circumstance.     But  if  the  vendee  takes  posses- 

»  Rcgli  r.  McCnurc,  47  Cal.  G12. 

*  Fitzgerald  v.  fiorhain,  4  Cal.  289;  GO  Am.  Dec.  Glfi;  Bacon  v.  Scannell,  9 
Cal.  271.     But  HOC  Eii^laiid  v.  (.'oin.  lua.  Co.,  IG  La.  Ann.  5. 

»  Stewart  r.  Scannell,  8  Cal.  80. 

*  Conilcy  V.  Fislier,  Taney,  121. 

*  Fori!  r.  Chahnera,  28  Cal.   13;  Parker  v.  Kcmirick,  29  Vt.  391;  llall  r. 
Panwn-j,  15  Vt.  358. 


§  l.M        TKUSOXAL  rilorERTY   Sl'MKc"!'  TO  rXKCrXIOX.  420 

Bioii  ns  tho  Dwnrr,  ami  l>y  liis  ut'ts  i-Kaily  sliow.s  to  tlio 
MorKl  that  lio  luis  hcfoiiu'  tlu'  pronriotor,  lils  t'n;j;iii:["m;^ 
tlu"  voiuliir  ill  tlir  rapacity  «>!'  a  del  k  or  as  an  ciiiployro 
does  not  riiuler  tin-  sali'  jn  r  -sv  IVaudultiit.  Tlio  nla- 
tion  whic'li  tlu'  vciulor  and  vimuKc  in  siuli  cases  assume 
toward  tho  Imsincss  must  l)o  sucli  as  to  clearly  indicato 
to  observers  of  ordinary  sajj^acity  that  tiie  fonner  is 
there  as  the  s(rriint,  and  the  latter  as  the  )ii(ii>tcr^ 
'*  What,  then,  constitutes  sueh  a  rhanjj^e  of  })ossessi«)n  as 
the  law  requires,  in  order  to  prevent  the  sale  being 
declared  fraudulent?  Undoubtedl}'  the  vendor  must 
deliver  to  the  vendee  tlie  possession  of  tlie  pioperty  in 
order  to  consuniniato  the  sale,  and  render  it  valid  as 
against  creditors.  The  delivery  must  bo  actual,  and 
such  as  the  nature  of  the  prftperty  or  thing  sold,  and 
the  circumstances  of  the  sah;,  will  reasonably  admit, 
and  such  as  the  vendor  is  capable  of  making.  A  mere 
symbolical  or  C(jnstructivc  delivery,  where  an  actual  or 
real  one  is  reas(.)nably  practicable,  is  of  no  avail.  There 
must  be  an  actual  separation  of  the  property  from  the 
possession  of  the  vendor  at  tlie  time  of  the  sale,  or 
within  a  reasonable  time  afterward,  according  to  tho 
nature  of  the  property.  But  is  it  essential  to  such 
separation  that  the  [}roperty  shall  be  removed  from  tho 
vendor,  or  the  vendor  from  the  property,  so  that  there 
shall  be  an  actual  and  visiljle  separation  between  them, 
measurable  by  space  or  distance?  Must  the  vendor 
absolutely  cease  to  have  any  connection  or  contact  with 

>  G<xlchaux  r.  Mulfor.l,  '20  C;il.  317;  85  Am.  Dec.  178;  Warner  v.  CarlUm, 
22  111.  415;  Duulap  r.  liournonvillc,  20  Pa.  St.  72;  Uothgcrbcr  r.  Oougli,  .V2 
111.  4.%:  lIugUH  r.  riobiiiHon,  24  Pa.  St.  i>;  B.-cks  v.  Lyon,  21  Conn.  (V>4;  Bil- 
lingfilty  »••  Whit*',  5'J  I'a.  St.  4(>4;  State  v.  Sciiuloin,  45  Mo.  521;  McKiblfin  r. 
Martin,  04  I'a.  St.  :i52;  3  Am.  lUp.  588;  Wil.ion  v.  Lfitt,  5  Fla.  305;  Talcox  r. 
Wilcox,  y  Coan.  134;  Ware  r.  HuhcIi,  11)  111.  App.  274;  O'Gara  v.  Lowry,  5 
Mont.  427;  Zciglcr  v.  Handrick,  100  Pa.  St.  87. 


421  PERSONAL  TROPERTY   SUBJECT  TO  EXECUTION.        §  155 

the  property  after  its  deliver}',  not  as  owner,  but  as  the 
agent  or  servant  of  the  vendee,  on  pain  of  having  the 
sale  declared  fraudulent?  To  hold  this  would  be  going 
beyond  the  established  doctrine  of  our  own  decisions, 
and  the  reason  and  requirements  of  the  law.  Separa- 
tion of  the  property  from  the  possession  of  the  vendor 
implies  nothing  more  than  a  change  of  the  vendor's  re- 
lation to  it  as  owner,  and  consists  in  the  surrender  and 
transfer  of  his  power  and  control  over  it  to  the  vendee. 
But  in  order  to  prevent  fraud,  the  law  requires  that 
this  shall  be  done  by  such  appropriate  and  significant 
acts  as  —  if  done  in  good  faith  —  shall  clearly  show  the 
vendor's  intention  to  part  with  the  possession  of  the 
property  and  transfer  it  to  the  vendee.  And  these  acts 
must  be  so  open  and  manifest  as  to  make  the  change  of 
possession  apparent  and  visible.  If  there  arc  sucli  pal- 
pable tokens  and  proofs  of  tlic  vendor's  surrender  of  his 
dominion  over  the  property  as  owner,  and  of  the  trans- 
fer of  his  possession  to  the  vendee,  the  sale  will  not  bo 
declared  fraudulent  in  law,  although  the  vendor  may 
act  as  the  airent  or  servant  of  the  vendee  in  the  man- 
agemcnt  and  disp»jsal  of  the  property,  provided  that  his 
acts  arc  professedly  and  apparently  done,  not  as  owner, 
Ijut  as  the  agent  or  servant  of  the  vendee,  and  are  so 
understood  by  those  with  whom  he  deals.  If  the 
change  of  possession  is  otherwise  sufficiently  shown, 
the  mere  fact  of  such  agency  is  not,  and  never  has  been 
held  to  be,  such  a  badge  of  fraud,  or  evidence-  of  re- 
taine<l  possession,  as  to  render  the  sale  invalid."* 

Separating  a  lot  of  sacks  of  grain  from  a  larger 
f^uantity  in  tlx;  vendor's  corral  or  barn-yard,  and  niark- 
it)<r  them  with  the  initial   letter  of  the  vendee's  name, 

>  BilliugMley  v.  White-,  59  Pa.  St.  407. 


§  i:.G        PERSONAL  rROPEKTY   SU1UE(T  TO   I'.XErUTIOX.  \'2'1 

aiul  pilinii  tluMii  upon  aiiotlirr  part  oi'  the  auuw  corral, 
is  not  a  suUicicnt  il«Ti\ crv,  wlicrt^  tlu*  v(Mulor  continues 
to  have  possession  lA'  tln>  corral.'  \\  lure  a  tt'ani  lias 
been  for  some  tinu'  tl riven  by  the  same  penson,  it  is  not 
a  sutHcient  cliairj^e  of  possession  to  make  a  formal  de- 
livery, discharge  and  re-emi)loy  the  driver,  and  then 
keep  the  team  in  the  same  place  and  about  the  same 
work  as  before," 

§  156.  How  Long  the  Change  of  Possession  must 
Continue.  —  A  Pennsylvania  court  once  said:  "It  is 
not  the  law  that  if  a  man  bona  fide  sells  cattle  which 
are  removed,  and  afterward  they  find  their  way  back 
to  his  possession,  the  sale  is  perse  fraudulent."^  Tliis 
is  certainly  a  very  clear  misstatement  of  the  law.  It 
is  perfectly  well  settled  that  the  possession  which  nmst 
accompany  a  sale  must  be  substantial,  —  not  taken  to 
be  surrendered;  and  must  contiime  for  a  period  sudi- 
cient  to  give  a  notoriety  to  the  sale,  among  those  who 
are  familiar  with  the  property.  If  the  possession  bo 
not  retained  by  the  vendee  till  it  accomplishes  this 
purpose,  the  sale  is  treated  as  though  no  change  of 
possession  had  ever  been  made.*  Thus  where  S.  sold 
his  stock  of  goods  to  W.,  who  took  possession,  and  re- 
moved the  property  to  his  own  store,  but  within  less 
than  two  weeks  allowed  S.  to  resume  possession,  pro- 
fessedly as  an  employee,  and   to   conuuence   retailing 

*  Vance  r.  Boyiiton,  8  Cal.  554. 

»  Hurlljurd  v.  Bogardu.s,  10  Cal.  r>\8;  Gray  v.  Corey.  48  Cal.  208.     See  Doak 
r.  Brubaker,  1  Nev.  218;  Sharon  r.  Shaw,  2  Nuv.  290;  90  Am.  Dec.  54G. 
>  .Jor.lan  r.  Brackenri.lge,  .3  Pa.  St.  442. 

♦  Whitney  r.  SUrk,  8  Cal.  .014;  C8  Am.  Dec.  300;  McBride  r.  McClelland, 
6  Watta  &  S.  94;  Young  v.  McClurc,  2  Watts  &  S.  147;  Streopcr  v.  Eckart,  2 
Whart.  302;  'M  Am.  Dec.  2.">S;  Van  Pelt  v.  Lettler,  10  Cal.  394;  Gol.lsljury  ?•. 
May,  1  Litt.  2.3G;  Breckunridge  v.  Anderson,  3  J.  J.  Marah.  710;  Norton  v. 
DooUttle,  32  Conn.  40j. 


423  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  156 

the  goods,  the  sale  was  declared  fraudulent.^  It  makes 
no  difference  that  the  property  was  delivered  back  to 
the  vendor  for  purposes  of  manufacture,^  ,nor  that  it 
might  pay  for  its  keeping,^  nor  that  an  agent  of  the 
vendee  allowed  it  to  return  without  asking  his  consent,* 
nor  that  after  one  week  it  was  hired  on  an  unexpected 
urgency  in  business,^  nor  that,  after  fourteen  days'  pos- 
session, it  was  sold  at  auction,  and  then  suffered  to 
return  to  its  former  owner.^  On  the  other  hand,  it  is 
equally  certain  that  tlie  vendee's  possession  need  not 
be  perpetual.  The  buyer  may  employ  the  former 
owner  to  take  charge  of  the  goods,  and  to  care  for  and 
sell  them  for  him.  If  he  does  this  in  good  faith,  and 
after  taking  such  possession,  and  exercising  such  con- 
trol and  dominion  over  the  property,  as  to  show  the 
pubhc  and  those  dealing  with  the  vendor  that  there 
has  been  a  real  change  in  the  ownership,  he  will  not 
be  subjected  to  the  penalty  of  a  forfeiture  of  his  prop- 
erty because  he  has  seen  fit,  or  has  been  compelled,  to 
leave  the  goods  in  charge  of  the  former  owner.'  The 
time  during  which  the  vendee  mu.st  keep  the  ]n-opcrty 
from  the  possession  of  his  vendor  must  necessarily  differ 
in  different  circumstances.  If  the  vendee's  use  of  the 
property  was  very  frequent,  open,  and  public,  the  change 
of  possession  would  acquire  sufficient  notoriety  in  a  short 
time;  while  if,  though  under  his  control,  it  was  rarely 
seen  by  the  public,  a  nmch  longer  time  would  be  neces- 

'  Weil  .'.  Paul,  22  Cal.  492. 
■■'  Carter  r.  Watkins,  14  Conn.  240. 
'  Oslxiriie  f.  Tuller,  14  Coiiu.  529. 
♦  Morrirt  v.  Hy.lf,  8  Vt.  .352;  .SO  Am.  Dec.  475. 
'•  WilMler  r.  I'cik,  .31  Conn.  495. 
'  RogerH  r.  Vail,  1(3  Vt.  .327. 

'  Stevfii.H  V.  Irwin,  15  Cal.  M:\;  7G  Am.  Dec.  .')00;  Clark  r.  Morse.  10  N.  H. 
236;  Powell  v.  Stickney,  88  lud.  310;  Ew-ing  r.  Mcrkky,  .3  UUii,  40(3. 


§  \M        PERSONAL  rROPERTY   SUUJElT  TO  EXECUTION.  421 

sarv.  A  iuort<;:uj;i'o  \vlu>,  ut'tmktault,  tak(>s  possession 
ami  tnrt'closes  his  niortj^at^i'  may  al'torwanl  loan  tho 
j>r«>j>rrl\  to  till'  lUDrtLraLTnr.'  Alter  sevi-n  inonliis'  jh)s- 
Bcssion  by  llie  voniloo,  ilurin<jj  wluoh  the  vciulor  occa- 
sionally uscil  the  property,  it  may  safely  be  permitted 
to  return  to  the  custody  of  the  vendor."  A  son,  in 
February,  si>ld  a  piano  to  his  inotlirr,  witli  \vln>iii  ho 
was  residing.  Ho  then  left  the  county,  expectinj^  to 
remain  away  permanently.  In  July  he  returned  and 
lived  with  the  mother  as  before.  The  piano  was  seized 
by  his  cretlitors;  but  the  court  declared  the  change  of 
possession  suttieient.'*  A  possession  lor  two  months,* 
for  five  weeks,^  from  the  "fore  part  of  Jaimary"  to  the 
I'Jth  of  February,*'  have  each  been  declared  sulHcient 
to  irec  the  sale  from  the  character  of  fraudulent  2^cr  se. 

§  167.  Property  Sold,  but  never  Delivered. — Let  it 
be  borne  in  mind  that  wc  have  hcretohjre  been  treat- 
ing of  the  retention  of  possession  by  the  vendor,  with 
reference  to  its  effect  as  evidence  of  fraud.  The  deliv- 
ery of  possession,  actual  or  constructive,  is,  however,  in 
some  of  the  states,  even  where  its  absence  is  not  re- 
garded as  fraudulent  j>fr*  se,  necessary  to  comi)lete  the 
sale,  so  that  the  property  cannot  be  levied  upon  by  the 
creditors  of  the  vendor.  In  other  words,  while  a  sale 
as  between  vendor  and  vendee  may  be  complete  with- 

>  Funk  r.  Staat%  24  111.  G.32. 

»  Farnsworth  r.  Shcpar.l,  G  Vt.  521;  Dewey  v.  Tlirall,  1.3  Vt.  281. 

»  Graham  v.  McCreary,  40  Pa.  St.  515;  80  Ani.  Dec.  591. 

«  French  r.  Hall.  U  N.  H.  1.37;  22  Am.  Dec.  341. 

'"  Bra<ly  v.  Harris,  18  Pa.  St.  11.3. 

*  SutU)n  r.  Shearer,  1  (irant  Can.  207.  For  different  caaes  determining  tho 
time  after  wliith  a  r"-:turn  of  poHses.sion  waa  or  was  not  held  fraudulent,  Bee 
Cunningham  r.  Hainilt^m,  25  111.  228;  Wright  v.  firover,  27  111.  42(i;  MiUh  r. 
Warner,  19  Vt.  009;  47  Am.  I>ec.  711;  Miller  v.  Garman,  28  Leg.  Int.  405; 
Look  V.  ComBtock,  15  WcmL  244. 


425  PERSONAL  PROPERTY    SUBJECT  TO  EXECUTION.       §  157 

out  fleli\  ory,  it  is  not  so  as  between  the  vendee  and  a 
creditor  of  or  a  purchaser  from  the  vendor.  In  such 
a  case,  the  proj^erty  may  be  awarded  to  the  creditor 
of  the  vendor,  or  to  a  subsequent  purchaser  from  him, 
not  because  the  sale  was  fraudulent  per  se,  but  because, 
as  against  such  creditor  or  purchaser,  it  had  not  yet 
been  consummated.  The  law  upon  this  subject  is  well 
stated  in  the  following  opinion  of  the  supreme  court  of 
Maine,  given  in  a  case  wherein  a  wife  claimed  certain 
cattle  as  the  vendee  of  her  husband:  ''The  rule  of  law 
is  well  established,  that  in  order  to  pass  the  title  to 
personal  property  by  a  sale,  as  against  subsequentl}" 
attacliinjx  creditors  of  the  vendor  without  notice,  there 
must  be  a  delivery,  actual,  constructive,  or  symbolical. 
(Cobb  V.  Haskell,  14  Me.  303;  31  Am.  Dec.  56.) 

"What  amounts  to  proof  of  delivery  has  been  much 
discussed  by  courts  and  jurists,  and  where  so  much 
depends  upon  the  subject-matter  of  the  sale,  its  situ- 
ation and  condition,  the  usual  course  of  trade,  and  all 
other  attendant  circumstances,  together  with  the  sul)- 
scfjuent  acts  of  the  parties,  as  showing  their  intention 
at  the  time  of  the  sale,  it  will  be  found  exceedingly 
dilHcult,  if  not  absolutely  imj>racticable,  to  lay  down  a 
general  rule  applicable  to  all  cases. 

"Though  this  is  uM(luul)tcdly  true,  yet  it  is  proper 
to  oljserve,  in  general  tt.ruis,  that,  to  constitute  proof 
of  a  delivery,  there  nmst  be  such  evidence  arising  from 
the  conduct  of  the  parties  as  shows  a  relinquishment  of 
ownership  .iiid  possession  of  the  property  by  the  vendor, 
and  an  aHsuiiii)tion  of  these  by  the  vendee.  This  is 
the  CQAo, :  — 

"1.  Actually,  when  there  has  been  a  formal  tradi- 
tion of  the  pn)|K;rty  to  the  vendee ;  or. 


§  i:.7        PFmSOXAL  TROPERTY  SUBJFA^  TO  EXECUTION.  42G 

"2.  Coiistruflivtly,  wlu'ii  tlie  itropcrty,  not  l)ein<'" 
present  or  aiTossiMc,  as  a  sliij)  at  sea,  tlic  \ ciulor  «^ivos 
the  viMuU'e  a  i^raml  Mil  of  sale,  uiidt  r  which  he  takes 
p(\ssessioii  upon  her  arrival  in  poit;  or  it"  the  |>r()[)crty 
is  (.litlifult  of  aeeess,  as  logs  in  a  stream,  or  inea[)al)]e  of 
manual  tradition,  as  blocks  of  stone,  when  the  vendor 
approaches  in  view  of  it  with  the  vendee,  and  j)roelaims 
a  ilelivery  to  him;  or  when  a  part  of  the  goods  are  de- 
livered for  the  whole;  or  if  the  goods  are  in  the  cus- 
tod}'  of  a  third  Jiarty,  where  the  parties  to  the  sale  give 
such  party  notice  of  the  transfer;  or, 

"3.  SNinbolically,  when  the  vendor  gives  the  vendee 
the  key  to  the  warehouse  in  which  the  goods  are  stored, 
or  an  order  on  the  wharfinger  or  warehouse-keeper 
who  has  them  in  charge,  or  a  bill  of  landing  duly  in- 
dorsed. 

"Though  the  assignment  and  delivery  to  the  vendee, 
by  the  vendor,  of  a  bill  of  lading,  invoice,  or  other 
documentary  evidence  of  his  title  to  the  goods,  has 
been  held  good  as  a  symbolical  delivery,  the  delivery 
of  a  l)ill  of  parcels  or  bill  of  sale  by  the  vendor  to  the 
vendee  has  been  held  insufficient,  as  these  depend  solely 
upon  the  vendor  for  their  authenticity,  and  may  be 
multiplied  indefinitely;  such  memoranda  are  not,  tech- 
nically considered,  documentary  evidence  of  the  ven- 
dor's title. 

"Thus  in  Lanfear  v.  Sumner,  17  Mass.  117,  9  Am. 
Dec.  HI),  a  merchant  in  IMiiladelphia  made  out  and 
receipted  a  bill  of  sale  of  a  number  of  chests  of  tea, 
supposed  to  be  on  their  passage  from  China  to  Boston, 
though  they  were  then  in  the  custom-house  in  Boston, 
and  before  the  agent  of  the  vendee  demanded  posses- 
sion of  them  they  were  attached  by  the  creditor  of  the 


427    PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.   §  157 

vendor.  The  court  sustained  the  action,  on  the  ground 
that  the  goods  not  being  at  sea,  there  was  no  dehvery, 
actual  or  symbohcal,  before  the  attachment. 

''So  in  Carters.  Willard,  19  Pick.  9,  the  only  evi- 
pence  of  delivery  was  the  giving  of  a  bill  of  sale  of  the 
goods  by  the  vendor  to  the  vendee,  and  the  court  held 
that  that  was  not  sufficient.  So,  also,  in  Burge  v.  Cone, 
6  Allen,  413,  the  same  question  arose,  with  the  same 
result.  The  doctrine  of  delivery  rests  upon  the  ground 
that  the  vendee  should  have  the  entire  control  of  the 
property,  and  that  there  should  be  some  notoriety  at- 
tending the  act  of  sale ;  and  hence,  proof  of  delivery 
will  not  be  dispensed  with  on  account  of  the  peculiar 
situation  or  relation  of  the  parties  with  respect  to  the 
property  at  the  time  of  the  sale,  nor  will  these  con- 
stitute sufficient  evidence  of  delivery. 

"Accordingly,  it  has  been  held  to  be  no  proof  of 
delivery  that  the  vendor  and  vendee  reside  in  the  same 
house  (Trovers  v.  Ramsy,  3  Cranch,  354);  not  even  if 
they  arc  brothers  (Hoffiier  v.  Clark,  5  Wliart.  445); 
or  son-in-law  and  father-in-law  (Stulwagon  v.  Jeffries, 
44  Pa.  St.  407);  nor  if  the  vendor  resides  with  the 
vendee  (Halle  v.  Cralle,  8  B.  Mon.  11);  nor  when  the 
the  vendor's  agent  remains  in  possession  with  the  vendor 
(Medcll  V.  Smith,  8  Cowp.  333);  nor  though  the  par- 
ties are  partners  with  respect  to  the  property  sold 
(Shurtliff  r.  Willartl,  18  Pick.  201). 

"It  is  clear  from  these  cases  that  there  is  the  same 
necessity  for  a  delivery  when  the  parties  to  the  sale 
arc  husl)an(l  mikI  wife  that  there  is  in  other  cases.  For 
this  ])urp()sc,  the  wife  sustains  the  same  relation  to  the 
liusi)a!id  as  any  other  person;  and  though,  in  respect  to 
personal  property  owned  by  the  wife  in  licr  own  right, 


g  i:.7         IMUtSOXAL   rUOrEUTY   SURJECT  TO   IIXECUTION.  IJS 

bIio  stiimls  upon  tlu' saiiu'  lootin|4  that  tlio  liusl>aiRl  docs 
to  his,  \\r  ar»'  i»<»t  awaii-  that  the  authorities  have  gone 
so  far  as  to  ilispouse  with  i\\v  nocossary  Inruiahtioa  to 
1)0  ohsorvi'd  iu  afquiriiiu^  property  in  li»r  favor. 

**In  this  ease  there  was  no  aetual  dehvery.  John 
^leKee,  the  vendor,  and  husband  of  the  plaintiff,  held 
the  s;inie  possession  after  as  before  the  sale  of  the  cat- 
tle. There  was  no  change  of  possession  by  the  act  of 
sale.  The  i>laintiff  had  no  possession,  either  of  the 
cattle  or  the  farm  on  which  they  were  kept.  She  re- 
sided on  tlie  farm  simi>]y  because  her  husband  did. 
Xttr  was  there  any  constructive  or  symbolical  delivery, 
unless  the  delivery  of  the  bill  of  sale  constituted  one; 
and  that,  as  we  have  seen,  is  not  sufficient,  there  being 
nothitig  to  prevent  an  actual  delivery  by  a  transfer  of 
the  manual  possession  of  the  prt)perty  to  the  vendee."^ 

It  would  seem  from  the  foregoing  case,  and  from 
others  in  which  similar  language  is  employed,  that 
while  proceeding  upon  different  grounds  they  reach 
the  same  practical  result  as  those  cases  which  declare 
the  want  of  delivery  and  continued  change  of  posses- 
sion to  render  the  sale  per  se  fraudulent.  That  the 
cases  are  not  designed  to  have  a  practical  identity 
of  result  is  obvious  from  the  fact  that  the  courts  which 
liave  been  the  foremost  to  maintain  that  the  retention 
of  possession  by  tlie  vendor  does  not  avoid  the  sale,  as 

>  McKee  r.  Oarcelon,  60  Me.  1G5;  11  Am.  Rep.  200.  See  also  01)cr  v. 
Matthews,  24  La.  Ann.  90;  Burge  v.  Cone,  6  Allen,  112;  Carter  w.  Willanl,  19 
Pick.  1;  Packanl  v.  Wood,  4  Gray,  307;  H(M>frtmith  r.  Cope,  6  Wliart.  63; 
Lan^ear  r.  Suinrier,  17  M:wa.  112;  9  Am.  Dec.  119;  Mount  Hope  Iron  Co.  v. 
Buffington,  lo:i  .Mass.  (J2;  Morgan  r.  Taylor,  32  Tex.  363;  Fairlichl  Bridge  Co. 
r.  Nye,  tJO  Me.  374;  note  (/  to  sec.  675  of  Biiij.unin  on  Sales,  Am.  e<l. ;  Ricker 
r.  Cross.  .'>  N.  H.  572;  22  Am.  Dec.  480;  HiUianl  on  Sales,  c.  8,  sec.  23; 
Shumway  r.  Ruttcr,  7  Pick.  5.j;  19  Am.  Dec.  340;  1  Parsons  on  Contracts,  4th 
ed.,  442.  But  from  tlie  doctrine  of  these  cases,  a  vigorous  and  well-cousidcred 
disseat  waa  expressed  iu  Meado  v.  Smith,  16  Couu.  347. 


429  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §157 

fraudulent  per  se,  have  also  been  the  foremost  to  declare 
that,  as  against  creditors  of  the  vendor,  the  title  to  per- 
sonal property  does  not  pass  without  deUvcry.     It  is 
difficult,  and  perhaps  impossible,  to  state  the  exact  dif- 
ference between  the  two  classes  of  cases,  the  first  of 
which  is  represented  by  Hamilton  v.  Russell,  cited  in 
section  149,  and  the   second  by  McKee  v.  Garcelon, 
from  which  we  have  just  quoted.     The  difference  is, 
nevertheless,   material.      That   it   cannot    be    satisfac- 
torily stated  is  not  owing  to  its  want  of  magnitude 
and  importance,  but  rather  to  the  fact  that  the  cases 
of  the  second  class,  while  not  diametrically  opposed  to 
one  another,  cannot  all  be  brought  to  the  same  line; 
and  hence,  as  a  class,  we  cannot  say  how  near  they  ap- 
proach the  line  of  decisions  following  the  lead  of  Ham- 
ilton V.  Russell.     So  far  as  we  understand  and  can  state 
it,  the  distinction  is  this:  the  cases  of  the  first  class 
demand  tliat  an  absolute  sale  shall  be  accompanied  and 
followed  by  an  open,  visible  change  of  possession,  such 
as  will  notify  persons  seeing  or  dealing  with  the  prop- 
erty of  its  change  of  ownership.     This  visible  change 
of  possession  will   ordinarily  be  dispensed   with  only 
upon  grounds  of  necessity;    and    having   once  taken 
place,  it  nuist   continue   until   Ijy  its  continuance   the 
sale   acquires  such  notoriety  and  such  appearance  of 
good    faith  a^  induces  a  conviction  of  its  realit}'  and 
fairness,  and  warns  the  connnunity  that  the  property 
can  no  lonuer  be  treated  as  that  of  the  vendor.     Want- 
ing  this  visible  and  continuous  change  of  possession,  tlio 
sale  is  d<x'lared  to  be  fraudulent  and  of  no  effect  as 
against  cre(htors  of  the  vendor.     The  cases  of  tlic  sec- 
ond <lass  (](;mand  that  there  shall  be  a  delivery  accom- 
panying or  following  the  sale.     But  the  delivery  which 


§  i:.8        TRRSONAL  TROrERTY   SUlUElT  T(^   EXECUTION.  4TO 

tli<'V  (*\;u't  s(>('ms  ill  most  casivs  to  Ix'  ii()(lni);j,-  iiion^  than 
S(Miio  tnniial  act.  imlii-atiiiLC  tliat  the  mihIoi-  k  Tiiujuishcs 
aiul  till'  voiuloe  assumes  possession.  Tlic  delivery  may 
therefore  he  without  that  notoriety  whieh  <j^ives  notieo 
to  the  world  of  the  transmission  of  the  title;'  and  hav- 
ing once  been  ]ierfeeted,  the  [Property  may  he  returned 
to  the  eontri»l  of  the  wndor  without  affectin;^  the  sale, 
except  by  inducing  a  pri'sumption  against  its  fairness. 
But  when  wanting  in  a  delivery,  "actual,  constructive, 
or  symbolical,"  the  sale  is  declared  as  against  creditors 
not  to  liave  taken  place,  and  they  may  seize  the  prop- 
erty and  apj)ly  it  to  the  satisfaction  of  their  claims 
against  the  vendor. 

§  158.  When  Property  is  Purchased  Fraudulontly 
and  by  misrepresentation,  without  paving  the  purchase 
price,  the  vendor  is  entitled  to  rescind  the  sale  and  re- 
claim pos.scssion  of  the  goods.  As  against  the  clain)S 
of  the  vendor,  the  vendee  has  no  interest  subject  to 
execution.  The  property,  if  levied  upon,  may  be  re- 
covered from  the  officer  in  the  same  manner  as  if  it 
were  still  in  the  hands  of  the  fraudulent  vendee.^ 

'  Ingalli  V.  Hcrrick,  108  Mass.  351;  11  Am.  Rep.  300;  Shumway  v.  Ruttcr, 
8  Pick.  443;  19  Am.  Dec.  .340;  Legg?-.  Willanl,  17  Pick.  140;  'J8  Am.  Dec.  '282; 
Hardy  r.  Potter,  10  tlray,  S'.l;  Plielps  v.  Cutler,  4  (Jray,  137;  Truxwortli  v. 
Moore,  D  Pick.  347;  BuUarJ  ?■.  Wait,  IG  Cray,  oo;  Ropea  ??.  Lane,  D  Allen,  50*2; 
Drake  on  Attachments,  ^5ec.  245  a;  Hatch  v.  Bayley,  12  Ciish.  27. 

•"  Van  Clecf  r.  Fleet,  15  Johns.  147;  Covell  r.  Hitchcock.  '23  W^end.  Gil; 
DurcU  r.  Halley,  1  Paige,  492;  Cary  r.  Hotailiiig,  1  Hill,  311;  37  Am.  Dec. 
323;  Lupin  r.  Marie,  2  Paige,  1G9;  Ash  v.  Putnam,  1  Hill,  302;  Acker  r. 
CanipljcU,  '23  Wend.  372;  Hitchcock  v.  Covill,  20  Wend.  107;  Farley  v.  Lin- 
coln. 12  Am.  R«-p.  182;  51  N.  H.  577;  Load  v.  Green,  15  Mces.  &  W.  21G;  Bris- 
tol r.  Wilsmore,  1  Barn.  &  C.  514. 


431       PERSONAL  PROPERTY  SUBJECT  TO  GARXISmiEXT.     §  159 


CHAPTER   XI. 

PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT. 

§  159.     Object  of  garnishment  proceedings. 

§  139  a.     Garnishment  of  property  not  subject  to  execution. 

§  159  b.     Garnishment  of  property  fraudulently  transferred. 

§  IGO.     Poisession  necessary  to  render  garnishee  liable. 

§  IGO  a.     Garnishment  of  property  in  possession  of  servant  or  agent. 

§101.     Bailee  of  choses  in  action. 

OF  THE    DEBTS   SCBJECT  TO   GARNISHMENT. 

§  162.     Must  be  debts  at  law. 

§  102  a.     Garnishment  of  rights  which  defendant  has  option  of  enforcing. 

§  103.     Debt  must  be  payable  in  coin. 

§104.     Debt  must  not  be  contingent. 

§  104  a.     Garnishment  of  claims  against  insurance  companies. 

§  165.     Need  not  be  due. 

§  106.     Debts  ia  suit  or  in  judgment. 

§  167.     Claims  in  tort,  or  for  unliquidated  damages. 

§  108.     Debts  due  by  negotiable  note. 

§  169.     Debts  due  from  two  or  more  persons. 

§  169  a.     Debts  due  from  two  or  more  jointly,  or  jointly  and  severally. 

§  170.     Debts  assigned. 

§  171.     Asserting  garnishment  as  a  defense. 

§  159.  The  Object  of  Garnishment  Proceedings  is 
generally  to  reach  assets  of  the  defendant  which  are 
not  susceptible  of  direct  seizure  by  the  attaching  offi- 
cer, cither  because  the  nature  of  the  property  makes 
such  seizure  impossible,  or  because  the  property  is  in 
the  possession  of  the  person  on  whom  the  garnishment 
i.s  served,  and  be  has  some  rights  or  interests  therein 
which  make  it  improper  for  the  officer  to  deprive  him 
of  such  po.ssession.  The  service  of  a  garnishment  is 
not,  in  most  states,  a  mode  of  proceeding  which  may 
safely  be  resorted  to  in  preference  to  a  direct  seizure 
of  the  property,  where  such  seizure  is  possible.  Gen- 
erally, if  the  i)roperty  is  capable  of  manual  delivery, 


§  159a    PERSONAL  PROPERTY   SUlUEl^'  TO  CAllMSHMKNT.     4.12 

it  must  l)o  si'izcil  l«y  tho  attiu-liiiiL,^  olliccr.  tliou^li  fouiHl 
in  the  |"K>sscssii>ii  of  a  s(ran;_;cr  to  the  wiit,,  ifsucli  pos- 
session can  !)(>  taken  from  liini  without  uny  invasion  of 
his  rights.'  A  Irvy  upon  clKittils  ('a|)aMo  of  manual 
dohvcry,  by  j^arnislnmnt  of  tlio  person  in  whose  po.s- 
ses-^ion  they  are,  is  ineflectivo.-  A  (hv«01ing-housG 
hclonj^inL!^  to  a  tciiaiit  of  tlio  land  upon  which  it  is 
standing  has  been  held  to  bo  capal)lc  of  manual  de- 
livery, and  therefore  not  attachal)le,  except  by  taking 
it  into  the  possession  of  the  otiicer.^ 

ij  169  a.  Property  not  Subject  to  Excution,whether 
Subject  to  Garnishment.  —  (Jarnislunent,  except  w  liere 
its  scojie  has  Ijeen  eidarged  l)y  statute,  is  generally  re- 
garded as  a  jtroceeding  at  law/  and  can  therefore  affect 
no  rit^hts  and  interests  not  rccofjnizcd  at  law.  This 
proceeding  is  designed  mainly  to  reach  the  l(\gal  assets 
of  the  defendant  in  the  hands  of  third  persons,  or  to 
intercept  legal  credits  owing  to  the  defendant,  and 
compel  their  payment  to  the  plaintiff.  Choses  in  ac- 
tion, though  not  subject  to  execution  at  law,  are  proper 
subjects  of  garnishment.  But  property  capable  of 
manual  deliver^'  is  rarely  subject  to  garnishment,  if  for 
any  of  the  causes  detailed  in  the  two  preceding  chap- 
ters it  is  not  subject  to  execution.  And  whether  capa- 
ble of  manual  deliver}^  or  not,  it  may  fall  within  the 
class  of  property  exempt  by  statute  from  attachment 

'  Civ.  Coile  Ala.,  eil.  1876,  sec.  3208;  Coiiip.  Laws  Ariz.,  ed.  1877,  sec. 
2501;  Gantt'«  iJig.  Ark.,  sec.  .390;  Code  Civ.  Proc.  Cal.,  sec.  542;  Code  Civ. 
Proc.  Col.,  sec.  US;  Code  Civ.  Proc.  Dak.,  bccs.  201,  208;  Rev.  Code  Del.,  c. 
104,  sec.  2. 

^  JoliDHOD  ».  Gorham,  G  Cal.  195;  05  Am.  Dec.  501. 

'  Colernan  r.  Collier,  1 1  Pac.  C.  L.  J.  507. 

♦  Tlioinad  r.  Hopper,  5  Ala.  442;  Price  r.  Mastersou,  35  Ala.  483;  Lackland 
r.  Garesclic,  50  Mo.  207. 


433     PERSONAL  PROPERTY   SUBJECT  TO  GARNISHMENT.     §  159  a 

or  execution.  If  such  is  the  case,  it  is  not  subject  to 
garnishment,  for  garnishment  is  merely  a  means  pro- 
vided by  statute  for  reaching  property  which  is  subject 
to  execution.  If  the  debt  soucjht  to  be  reached  repre- 
sents  money  obtained  or  due  to  the  defendant  as  a 
pension,  the  garnishee  is  not  liable  because  of  the  ex- 
emption of  such  pension  money  from  execution.^  A 
like  result  follows  where  the  debt  consists  of  wages  due 
to  the  defendant  and  exempt  b}^  statute  ;■  and  generally, 
it  is  the  duty  of  one  who  is  garnished  for  debts  or  prop- 
erty exempt  from  execution  to  urge  such  exemption,  or 
at  least  to  give  the  defendant  an  opportunity  of  so 
doing.  If,  however,  the  creditor  succeeds  in  collecting 
b}'  garnishment  wages  of  the  debtor  which  by  law  are 
exempt  from  execution,  the  latter,  unless  he  has  waived 
such  exemption,  may  proceed  against  the  former  as  a 
wrong-doer,  and  recover  the  amount  improperly  col- 
lected.^ Property  situate  beyond  the  territorial  limits 
of  a  state  is  not  subject  to  direct  seizure  by  the  officer.<i 
of  such  state,  because  their  authority,  and  that  of  the 
courts  whom  they  represent,  is  confined  within  those 
limits.  This  is  true  although  such  property  may  be  in 
the  possession  or  contiol  of  a  perscm  who  is  within  the 
state.  "Notwithstanding  the  general  language  of  our 
statute  upon  the  subject  of  garnishment,  that  'any 
creditor  shall  be  entitled  to  proceed  by  garnishment  in 
the  circuit  court  of  the  proper  county,  against  any  per- 
son (except  a  municipal  corporation)  who  shall  be 
indebted  to  or  have  any  property  whatever,  real  or 
personal,  in  his  possession  or  under  his  control  belong- 

>  Haywoo«l  r.  Clerk,  50  Vt.  612. 

»  Hliss  V.  Smitli,  IH  111.  3.V.);  Hoffman  r.  FitzwiUiam,  81  111.  521;  Chicago  etc. 
r.  Rylaii-l,  84  111.  .17.-);  Wclkcr  r.  Hintze,  10  111.  App.  326. 
»  Albretht  v.  Troitachkc,  17  Ntl).  205. 
Vol.  L  — 28 


§  l.VJa    PERSONAL  rUOrKllTY   sriUKCT  TO  OAHNISHMKNT.     VM 

iii'4  to  such  (.TiHlitur's  iKhtor,  in  tlir  cases,  ujxm  the 
iMimlitions,  and  in  tluMnaiiiur  prcsrribod  in  thiscliaptor,' 
wo  fool  oonstraiiu'(l  (o  hold  thai  (lio  iicrsonal  piMporty 
or  nal  ostato  in  his  jiossossion  or  iniiN  r  liis  control 
iuwA  l>o  limited  to  jtcrsonal  |)roj>crty  or  real  estate 
within  this  state,  an<l  that  in  the  ahsence  of  any  IVaud 
or  connivance  on  tlio  ])art  of  the  jj^arnishec  to  aid  in 
dofraudini;^  his  creditors,  j)ersoiial  pidpnty  or  real  I'S- 
tate  which  is  lawfnlly  in  the  jxtssession  or  under  tho 
control  of  the  ^arnisluH'  outside  of  this  state  is  not  the 
subject  of  ti^arnishnient  under  our  statute;  that  per- 
sonal chattels  outside  of  the  state,  wliicli  if  witliin  the 
state  could  be  seized  by  attachment  or  execution,  were 
not  intended  to  be  covered  by  the  statute,  is,  we  think, 
evident." ' 

So  property  held  by  any  person  as  the  custodian  of 
the  law,  or  as  a  disburser  of  j)ublic  moneys,  or  merely 
in  an  official  capacity,  is  no  more  subject  to  garnish- 
ment than  it  is  to  direct  levy  under  execution.^  So 
where  propert}"  capable  of  manual  delivery  cannot  bo 
subjected  to  ordinary  levy  and  sale,  because  it  is  in 
the  bands  of  a  person  other  than  its  owner,  and  such 
other  person  is  entitleil  to  remain  in  such  possession 
for  some  definite  j)eriod,  it  cannot,  unless  made  so  by 
statute,  be  reached  l)y  garnishment  or  trustee  process. 
Hence  a  pledgee  or  a  mortgagee  in  possession  cannot 
be  summoned  and  charged  as  the  trustee  of  the  pledgor 

»  Bates  r.  C.  M.  &  St.  P.  R'y.  ^^  ^^"'3-  29G;  50  Am.  Rep.  309. 

»  Kundlc  r.  Shcetz,  1  MileH,  330;  Corbyu  v.  Ballman,  4  Watts  k  S.  342; 
Buckley  r.  Echcrt,  3  P:t.  St.  308;  Clark  v.  Boggs,  C  Ala.  809;  41  Am.  Dec.  85; 

SpauMing  r.  ,  1  Hoot,  n^l;  Tliorn  »•.  Wfxxlruff,  5  Ark.  55;  Ft)wler  t'.  Mc- 

nelland.  5  Ark.  188;  StiUiiiaii  v.  Isliam,  II  Conn.  124;  Mc.Meekin  v.  SUtc,  9 
Ark.  553;  Winchcll  r.  Allen,  1  Conn.  385;  Ward  r.  Hartford  Co.,  12  Conn. 
40t;  LyooB  r.  Hoiutoa,  2  iiarr.  (Del.)  349;  liollo  r.  Andeii  lus.  Co.,  7  Chic. 
U  N.  03. 


435    PERSONAL  PROPERTY   SUBJECT  TO  GARNISmiENT.     §159a 


or  mortgagor. ^  This  is  the  rule  sustained  by  a  con- 
siderable majority  of  the  authorities  arising  under  laws 
in  which  the  garnishment  of  pledgees  and  mortgagees 
is  not  clearly  authorized  by  some  statutory  provision. 
But  the  propriety  of  subjecting  the  interests  of  pledg- 
ors and  mortgagors  to  execution  has  been  very  gen- 
erally conceded.  While  the  mortgagee  or  pledgee  is 
in  possession,  and  entitled  to  so  continue,  it  is  evident 
that  no  direct  seizure  can  be  made.  The  most  con- 
venient method  of  reaching  the  property  and  subjecting 
it  to  execution  is  by  garnishment.  This  method  is  now 
very  generally  authorized  by  statute  to  reach  pledged 
or  mortgaged  property,  and  is  in  ver}^  common  use,^ 
In  some  of  the  states  it  may  be  shown  that  the 
mortgage  is  fraudulent  as  against  creditors,  and  the 
mortgagee  compelled  to  account  for  the  full  value  of 
the  property.^  A  mortgagee  cannot  be  held  as  the 
trustee  or  garnishee,  except  when  he  is  in  the  actual 
possession  of  the  property.*  Tlie  rights  of  garnishment 
nmst  be  exercised  in  subordination  to  the  rights  of  the 
mortgagee  or  pledgee.  Generally  the  mortgagee  can- 
not be  deprived  of  the  possession  without  he  is  first 

'  Drake  on  Attachment,  sees.  538,  540;  Hutlson  r.  Hunt,  5  N.  H.  538; 
Patteraon  v.  Harlan.l,  1'2  Ark.  158;  BaJlaui  r.  Tuck«;r,  1  Pick.  389;  11  Am. 
Dec.  202;  Central  Bank  v.  Prentice,  IS  Pick.  3'.)G;  Whitney  r.  Dean,  5  N.  H. 
249;  Howard  v.  Carl,  G  Me.  .353;  Callendcr  i'.  Furbish,  4(i  Me.  226;  Kcrgiu  r. 
Daw.Hon,  1  (iilm.  8(»;  Khoadrt  r.  Megonigal,  2  Pa.  St.  39. 

»  Aldrich  r.  \Voo<lcock,  10  N.  H.  99;  lioardman  r.  dishing,  12  N.  H.  105; 
Chapman  r.  Gale,  32  N.  H.  421;  Hughes  v.  Corey,  20  Iowa,  399;  Carty  v. 
Fcnutonaker,  14  (Jhui  St.  457;  Blake  r.  Hatch,  25  Vt.  555;  Tread  well  r. 
Davi^.  :J4  Cal.  <XH;  94  Am.  Dec.  770;  Kdwanls  w.  Ikugnot,  7  Cal.  102;  Becker 
V.  l>uiiiiam,  27  Minn.  32;  I'.urnham  v.  Doolittle,  14  Neb.  214;  l)avi»  ?-.  Wilson, 
62  Iowa,  l.'(7;  Williams  v.  (Jallick,  3  Pac.  Kej).  4G9. 

*  Brainard  v.  Van  Kuvan,  22  Ictwa,  2G1.  '1  he  same  rule  was  applied  to 
a  vondco  under  a  frauduh-ut  aalo.     Morris  v.  Houhc,  32  Tex.  492. 

♦Pierce  r.  Hciirie,  35  Me.  57;  Central  Bmk  r.  Prentice,  18  Pick.  390; 
Wood  r.  Eatea,  35  Me.  145;  Callendcr  r.  Furbiuh,  40  Me.  220. 


§159b    PERSONAL  TROPERTY  SITB.TECT  TO  GARNISHMENT.     436 

ofloii'd  pavuiont  of  tho  iiioitLCafje  debt/  In  some 
states  ]>leili;eil  property  may  be  taken  and  olfered  for 
sale  at  publie  auetion.  It' it  ean  be  sold  lor  more  than 
the  debt  yeeured,  the  debt  is  paid,  and  tlie  balan3e 
applied  to  the  ])ayment  of  the  judu^ment.  If,  however, 
no  bid  ean  be  obtahied  sutHeient  to  diseharge  the  elaini 
of  tlie  pledgee,  the  property  is  returned  to  him.^ 

§  159  b.  Garnishmeiit  where  Fraudulent  Transfers 
have  been  Made.  —  As  has  been  heretofore  shown,  a 
tran^ifer  made  to  defraud  creditors  may  generally  be 
treated  by  them  as  absolutely  void,  and  the  property 
transferred  may  be  levied  upon  and  sold  in  the  same 
manner  and  with  the  same  etiect  as  though  such  trans- 
fer had  not  been  attempted.  A  fraudulent  transfer 
is  equally  unavailing  against  a  garnishment.  Hence 
where  one  is  garnished,  and  has  goods  in  his  possession 
acquired  from  the  execution  defendant  under  a  mort- 
gage, if  it  be  shown  that  the  mortgage  debt  was  created 
under  and  in  jiursuance  of  a  conspiracy  entered  into 
between  such  defendant  and  the  garnishee  for  the  pur- 
pose of  defrauding  the  creditors  of  the  former,  then  the 
latter  is  answerable  to  the  judgment  creditor  for  such 
goods.^  So  where  corn  was  purchased  of  J.,  but  the 
purchaser  was  afterwards  told  that  it  belonged  to  J.'s 
son,  to  whotn  a  note  was  given  for  part  of  the  purchase 
price,  and  the  purchaser,  being  garnished  under  an  exe- 
cution against  the  father,  nevertheless  paid  the  note  to 
the  son,  it  was  held  that  the  purchaser  was  answerable 
on  the  garnishment  on  proof  being  made  that  the  note 

'  Cotton  r.  Marsh,  3  Wi.s.  221;  Frisbee  v.  Langworthy,  11  Wis.  375;  Cotton 
r.  Watkius,  6  Wia.  G29;  Sellcck  v.  Phelps,  11  Wis.  380. 

»  HilU  V.  Smith,  8  Fost.  300;  Torbctt  r.  Hayden,  11  Iowa,  435;  Brigga  v. 
Walker,  1  Fost.  72-     See  Sticf  v.  Hart,  1  N.  Y.  20. 

»  Cowles  V.  Coe,  21  Conn.  220. 


437    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  159  b 

was  taken  in  the  name  of  the  son  to  defraud  the  cred- 
itors of  the  father/  In  Maine,  where  B.  held  a  ship 
as  collateral  security  for  a  loan,  under  a  conveyance 
absolute  in  form  made  by  K.,  and  they  subsequently,  in 
anticipation  of  an  attachment,  agreed  that  B.  should 
not  execute  any  defeasance,  and  that  the  conveyance 
should  be  treated  as  absolute,  but  had  a  secret  under- 
standing that  B.  would  reconvey  on  payment  of  the 
oriorinal  sum  due,  it  was  decided  that  B.  mij2^ht  be 
charged  as  trustee,  and  further,  that  having  claimed 
the  ship  absolutely,  and  not  as  security,  his  claim 
should  be  regarded  as  fraudulent,  and  he  held  for  the 
full  value  of  the  ship,  regardless  of  his  loan.^  If  an 
assiofnraent  be  made  for  the  benefit  of  creditors  which 
is  void  because  not  in  compliance  with  the  statute  of 
the  state  re^'ulatino:  such  assio^nments,  or  because  it  is 
actually  or  constructively  fraudulent,  the  property  or 
its  proceeds  may  be  garnished  while  in  the  hands  of  the 
assignee,^  or  of  his  vendee  who  has  agreed  to  pay  but 
has  not  actually  paid  therefor/  It  is  not  the  taking 
of  a  fraudulent  transfer,  but  the  reception  of  property, 
which  makes  the  garnishee  answerable;  Hence  he 
may  exonerate  himself  by  showing  that  the  property 
of  which  he  received  a  fraudulent  mortuas^e  or  bill  of 
sale  never  came  into  his  possession,  or  having  come 
into  his  possession,  was  returned  to  the  defendant  be- 
fore the  garnishment  was  served,  or  being  an  animal, 
has  died,  and  is  therefore  not  subject  to  execution/  In 
Arkansas,  money  was  given  by  a  husband  to  his  wife, 

1  Kesler  v.  St.  John,  22  Iowa,  5G5. 
»  Tlioinpsou  V.  Ponnell.  G7  Me.  159. 
'  Kimball  r.  Evans,  58  Vt.  Goo. 

♦  Dixon  V.  Hill,  5  Mich.  404. 

*  Gutterson  v.  Morse,  58  N.  U.  529. 


§  KX)     rnUSOXAL  niOrF.RTY   SUaiECT  to  OARNIRIIMKNT.       438 

who  tK'positrd  it.  in  lior  naiii«»  in  a  l)aiik,  wIkti;  it  was 
souLrht  to  lu'  pirnisluMl  uiuK  r  a  \\  rit  ajj^ainst  tlu'  lius- 
luiiul.  Tho  omii-t.  li()\V('\ cr.  litld  that  l>v  tlic  drposit 
tho  hank  hocainc  a  cnchtor  ot"  tlu'  wile;  and  tliat  tho 
question  wliothrr  tl»c  ai-t  of  tlu!  hushand  in  Lrivin^  tho 
niontT  to  tlie  wifo  was  fraiKhdcnt  or  not  could  not  ho 
tried  otherwise  than  under  a  liill  in  ctjuity,  settiuL^^  u|) 
tho  hushand's  insolvency  and  tVau(hdent  purpose  in  pay- 
ing the  money  to  liis  wife,  and  l>rnyinL!f  tliat  tlie  nion(\v 
he  adjudged  to  helong  to  the  husband,  and  directed  to 
be  paid  to  Ids  creditors.' 

?  160.  The  Possession  Necessary  to  Charge  the 
Garnishee.  —  In  order  to  charge  a  [xTson  as  trustee  or 
garnishee  on  account  of  property  capable  of  manual 
deliver}',  he  must  be  in  the  actual,  as  contradistin- 
guished from  the  constructive,  pos.session  of  the  proj)- 
erty."  If  he  is  not  in  the  actual  possession  of  the 
property,  he  must,  at  least,  have  both  the  right  and 
the  power  to  take  innnediate  possession,  before  he  can 
be  garnished.^  "The  garnishee  must  not  only  have 
actual  possession  of  the  defendant's  effects,  hut  there 
must  be,  except  in  cases  of  fraudulent  disposition  of 
property,  privity  between  him  and  the  defendant,  both 
of  contract,  express  or  implied,  and  of  interest,  by  which 
the  defendant  would  have  a  right  of  action  or  an  ecjui- 
table  claim  against  the  garnishee  to  recover  the  jirojxTty 
for  his  own  use,  either  at  the  present  or  some  future 

'  Himstedt  v.  Oerrnan  Bank,  4G  Ark.  537. 

'  Andrews  r.  Ludlow,  5  Pick.  28;  Willard  r.  Sheafe,  4  Mass.  23r);  Grant  v. 
Shaw,  IG  Mass.  3M;  8  Am.  Dec.  142;  IJurrell  r.  Lctaon,  1  Strob.  230;  Drake 
on  Attachment,  sees.  482-484. 

*  Lane  r.  Nowell,  ]'>  Me.  8C;  Morse  v.  Holt,  22  Me.  180;  Glenn  r.  H.  &  8. 
Glaas  Co.,  7  Md.  287;  Childs  v.  Digly,  24  Pa.  Ht.  23;  Ward  v.  Lainson,  0  Pick. 
358. 


439       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  IGO 

time.  The  want  of  privity,  either  of  contract  or  of 
interest,  will  oenerallj  prevent  the  garnishee's  being 
charged.  Property  may  be  in  the  garnishee's  hands, 
in  which  the  defendant  has  an  interest,  but  which  the 
garnishee  may  be  under  no  legal  obligation  to  deliver 
to  him ;  and  as  the  plaintiff  can  exercise  no  greater  con- 
trol over  the  property,  in  such  case,  than  the  defendant 
could,  the  garnishee  cannot  be  charged.  There  may, 
too,  be  property  in  the  garnishee's  hands,  the  legal  title 
to  which  is  in  the  defendant,  and  for  which  the  defend- 
ant might  maintain  an  action  against  the  garnishee, 
and  yet  the  latter  not  be  liable  as  garnishee.  Such, 
for  instance,  as  held  in  Xew  Hampshire,  is  the  case  of 
a  party  who  has  taken  the  goods  of  another  by  trespass, 
and  who  cannot,  in  respect  thereof,  be  held  as  garnishee 
of  the  owner,  tliough  the  legal  title  is  in  the  latter,  and 
he  might  maintain  an  action  for  the  trespass.  Such, 
too,  is  the  case  of  one  in  whom  the  legal  title  of  goods 
is  vested,  but  has  no  interest  of  his  own  in  them."^  In 
conformity  with  these  principles,  it  must  be  held  that 
property  which  happens  to  bo  in  the  possession  of  a 
person,  either  without  his  consent^  or  without  his 
knowledge,^  does  not  render  him  liable  to  be  held  as 

*  Drake  on  Attachmeut,  sec.  485.  For  illu.^trations  of  the  doctrines  hero 
stated,  see  same  work,  sees.  480-41)1,  inclusive;  au>l  also  Skowhegan  Bank  r. 
Farrar,  40  Me.  '2'.Ki;  Di.spatch  Line  r.  Bellamy  M.  Co.,  \'2  N.  II.  203;  'M  Am. 
Dec.  20.3;  Simpson  r.  Harry,  1  Dears.  &  B.  202;  Miller  v.  Richardson,  1  Mo. 
310;  Jones  r.  /Ktna  Ins.  Co.,  14  Conn.  50);  White  r.  Jenkins,  10  Mass.  02; 
Bridg.len  v.  CAW,  10  Mans.  522;  Wright  v.  Foonl,  5  N.  H.  178;  Pickering  r. 
Wen.lall,  20  N.  H.  222;  Hess  r.  Siiorh,  7  Pa.  St.  2.31;  Newer  r.  Fallon,  18  Mo. 
277;  liarnanl  v.  f;raves.  10  Pick.  41:  liean  r.  Bean,  3J  N.  H.  279;  Briggs  r. 
Block,  18  Mr).  281;  Huntley  v.  Stone,  4  Wis.  91;  Field  r.  Crawford,  0  Cray, 
110;  Kich.  Iherger  r.  Murdoek,  10  .Md.  373;  09  Am.  Dec.  140;  Town  r.  (Jrillith, 
17  N.  H.  10.");  Fol.-om  r.  Haskell,  11  Cush.  470.  For  exceptions  to  the  rule, 
see  Jackson  v.  U.  S.  Rink,  10  Pa.  St.  01. 

'Stani<ls  i-.  Kaymond,  4  Cush.  314. 

»  Bingham  r.  lumping,  20  Pa.  St.  340;  67  Am.  Doc.  418. 


§  100    ri-RSONAL  PROPERTY  SUBJECT  TO  r.ARN'islIMEXT.       140 

a  trustor  or  <jfariiislioo.  In  ;i  tVw  oasos.  it  has  hecn 
(Ii'cuKhI  that,  a  person  could  l»c  cliar^cd  as  trustee  for 
])rojH'rty  in  his  possession,  in  wliicli  he  had  no  interest, 
which  he  had  no  rij^ht  to  detain,  and  upon  which  a, 
(hreet  levy  anil  seizure  could  be  made.'  On  the  other 
hanil,  it  is  said  that  even  a  six^cial  deposit  of  money 
slu)uM  he  levied  ujxtn  and  taken  into  the  officer's  pos- 
session, instead  of  sununoninu^  the  person  in  wliose 
possession  it  is  as  a  garnishee.''  In  some  cases  where 
the  possession  of  the  garnishee  is  sufficient  to  charge 
him.  special  circumstances  may  entitle  him  to  rehef. 
For  instance,  lie  may  be  a  common  carrier  who  has 
issued  a  bill  of  lading  or  carrier's  receipt.  If  so,  he 
cannot  be  charged  as  garnishee  while  such  bill  or  re- 
ceipt is  outstanding;  for  he  cannot  know  to  whom  it 
is  his  duty  to  deliver  the  property.^  So  process  may 
be  served  upon  him  when  the  property  is  in  the  posses- 
sion of  one  of  his  servants  at  some  distant  point.  In 
this  event,  he  is  not  chargeable,  unless  the  service  is 
made  "at  such  a  time  and  under  such  circumstances 
that  he,  by  the  exercise  of  reasonable  diligence,  may 
communicate  it  to  his  servant  in  time  to  prevent  the 
deliveiy  to  the  consignee."  It  would  be  the  height  of 
injustice  to  hold  a  railroad  company  liable  as  garnishees 
for  goods  which  their  servants  and  employees  have  de- 
livered to  consijT^nees  entitled  to  receive  them,  havinjx 
no  notice,  at  the  time  of  making  such  delivery,  that  any 
garnishee  process  had  been  served,  and  before  a  reason- 
able time  had  elapsed  after  the  service  upon  a  distant 

>  Brown  r.  Davis,  18  Vt.  211;  Loylena  v.  Holges,  44  Ga.  G47. 
»  Wf)od  r.  E<lgar,  13  Mo.  451. 

*  Walker  v.  G.  H.  &  M.  K.  K.  Co.,  49  Mich.  446;  eeo  Bingham  r.  Lamping, 
26  Pa.  St.  340;  07  Am.  Dec.  418;  Wood  v.  Ualf,  44  lex.  033. 


441     PERSONAL  PROPERTY   SUBJECT  TO  GARNISHMENT'.    §  160  a 

oflScer  of  the   corporation  within  which  notice  could 
have  been  given  to  stop  such  deUvery."^ 

§  160  a.  The  Garnishment  of  Property  in  the  Pos- 
session of  a  Servant  or  Agent  has  occasioned  consider- 
able judicial  discussion  and  dissention.  Where  posses- 
sion is  held  by  a  servant  or  agent,  the  property  is,  in  con- 
templation of  law,  in  the  possession  of  the  principal,  and 
it  may,  and  generally  nmst,  be  levied  upon  in  the  same 
manner  as  like  property  belonging  to  the  principal  and 
held  by  liim  without  the  aid  of  any  servant  or  agent. 
Where  the  property  is  capable  of  manual  delivery,  and 
may  therefore  l^e  taken  into  the  possession  of  the  officer, 
the  service  of  a  notice  of  garnishment  on  a  servant  or 
agent  of  the  defendant  will,  we  apprehend,  be  univer- 
sally conceded  to  be  an  idle  ceremony.  But  moneys  are 
frequently  collected  by  mere  servants  or  agents,  and 
remain  in  their  possession  under  such  circumstances 
that  they  must  be  regarded  as  mere  custodians  of  such 
moneys,  rather  than  as  debtors  of  their  principals. 
Familiar  instances  of  this  are  treasurers  of  corpora- 
tions, ticket  sellers,  and  station-agents  in  the  service  of 
transportation  companies,  and  collectors  of  tolls  upon 
toll-roads.  Witli  resi)ect  to  these  and  similar  cases,  it 
has  been  held  that  the  possession  of  the  agent  was  the 
p()ssessi(»n  of  the  principal;  that  tlic  relation  of  debtor 
and  creditor  did  not  exist  between  them;  that  garnish- 
ment must  be  directed  against  a  third  person;  that 
such  agent  is  not  a  tliird  person,  within  the  meaning  of 
the  rul(>,  and  tlicn-'fore  tliat  moneys  collected  and  held 
by  him  cannot  be  reached   by  garnishment,  under  a 

>  lUtL-n  V.  C.  M.  ft  St.  ?.  R.  R.,  GO  Wi«.  2%;  50  Am.  Rop.  3G0;  Spooncr  v. 
IlowLuid,  4  Allen,  485. 


1101     PKHSONAL   PHOrKIlTY   SUIVIIXT  TO  GAKMSIlMr.NT.       MJ 

writ  against  his  j)rini'ip;il.'  "^riit*  n-asoniii;^"  of  these 
oases  sofiiis  <juite  raullK'ss,  hut  the  ciHichi-ioii  ivaflietl 
is  very  un^atislaeti>rv.  It  \\»>ul(l  phice  nioneys,  wliile 
ill  thi'  hands  (if  servants  and  aii^fnts,  cxec^pt  whiMi  so 
situatod  that  it  eoulil  l>e  s(H'n  and  sci/A'd  l»y  tlie  ollleer, 
h<\\on«l  tlu'  rrach  of  proci'ss  ajj^ainst  theic  i>rincii)als, 
and  would  rnalilc  the  latter  toddV  their  cn-ditors,  not- 
NvithstandinLT  tin-  existence  <»f  ample  t'und«  for  their 
Siitisfaetion.  The  majority  ot"  tiie  courts  liave,  there- 
fore, not  yielded  to  reasonintjj  leadinjjf  to  a  result  so 
unjust  and  so  at  variance  with  a  ))iactical,  connnon- 
senso  view  of  this  (juestion,  and  have  determined  that 
an  aufent  or  servant  of  the  defendant,  on  l)ein<^  served 
with  a  LCarnishinent  aj^ainst  the  latter,  heoomes  bound 
to  retain  any  moneys  in  their  hands  l)elon^^in;4  to  such 
defendant,  and  to  hold  it  suhjeet  to  such  garnishment.'^ 

ji  161.  Bailee  of  Choses  in  Action.  —  A  chose  in  ac- 
tion can  onlv  he  reached  hv  proceedings  against  the 
payor  thereof.  It  may  happen  that  a  promissory  note 
is  deposited  with  some  third  ])erson,  for  the  ])ur})ose  of 
collection,  or  as  collateral  security,  or  merely  for  safe- 
keeping. This  person  is  not  on  that  account  liable  to 
be  summoned  and  charged  as  a  garnishee  or  trustee.^ 

'  Fowkr  r.  Pittsburgh  R'y,  35  Pa.  St.  22;  Hall  r.  Filter  Mfg.  Co.,  10  Phila. 
370;  Pcttingill  r.  AnJro8cog,'in.  ."jI  Mo.  370. 

■*  LitUut^.u  Bmk  r.  P.  &  O.  It.  U.  Co.,  58  N.  H.  104;  Orcgg  v.  V.  &  M. 
Bank,  8J  M<..  2.">l;  Mum  r.  Bufor.l.  '.i  AU.  312;  37  Am.  Dec.  Ct'l;  Maxwell  r. 
Mcdve,  12  Cush.  l"u;  C.-ntnil  V.  R.  R.  C.  r.  .SaiiiinoMS,  27  Ala.  380;  Ikillstoa 
Sj.a  Riiik  r.  Marino  Bank,  18  Wia.  4'.KJ;  Kverdcll  v.  S.  &  1".  .In  I^io  R.  R. 
41  Wi«.  .3'J.j;  First  Nat.  Bank  of  Davenport  r.  D.  &  St.  P.  R.  li.,  4.'.  Iowa,  120. 

»f;rosvenor  r.  F.  &  M.  lUnk.  13  Conn.  KW;  Hall  r.  Page,  4  (ia.  428;  48 
Am.  Dec.  2:^5;  Clark  r.  Vikrt,  32  .Me.  32;  Run-Uut  r.  .Ionian,  3  Mo.  47;  Skow- 
began  Bank  r.  Farrar,  4<>  Mo.  2U3;  Raiguel  r.  McConnell,  25  Pa.  St.  3G2; 
I>cacoa  r.  Oliver,  14  How.  GIO;  Moore  r.  Pillow,  3  Humph.  448;  Fitch  v. 
Waite,  5  Conn.  117;  Fuller  r.  Jcwett,  .37  V't.  473;  L.ano  v.  Felt,  7  Gray,  491; 
Scofield  r.  White,  20  Vt.  330;  Ameo  r.  Jackaon,  35  Vt.  173;  Smith  v.  Wiley, 


443       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  161 

In  some  of  the  states  the  decisions  upon  this  subject 
seem  to  be  grounded  upon  this  principle :  that  a  chose 
in  action  cannot  be  taken  and  held  under  execution, 
and  therefore  that  a  bailee  thereof  cannot  be  compelled 
to  surrender  it  under  proceedings  in  garnishment,  be- 
cause it  would  be  idle  to  compel  the  delivery  to  the 
court  or  officer  of  that  which  could  not  be  seized  or 
held  under  the  writ.^  In  several  states,  however,  cer- 
tain choses  in  action  are  liable  to  seizure  and  sale  under 
execution ;  while  in  other  states,  choses  in  action,  if 
delivered  to  the  officer,  or  to  the  receiver,  could  be 
collected  by  suit  against  the  payor  thereof  It  is  evi- 
dent that  the  reason  assigned  for  not  requiring  the 
bailee  of  choses  in  action  to  deliver  them  to  an  officer 
acting  by  garnishment,  or  in  proceedings  supplemental 
to  execution,  has  no  application  to  some  of  the  states, 
and  it  would  be  logical  to  infer  that  where  the  reason 
does  not  exist  the  rule  would  not  be  enforced.  Never- 
theless, we  have  met  with  no  case  in  which  the  bailee 

41  Vt.  19;  Ellison  r.  Tuttle,  2S  Tex.  283;  Tirrell  v.  Canada,  25  Tex.  455; 
Levisohn  r.  Waganer,  70  Ala.  412;  Tingley  v.  Dolhy,  13  NoIj.  371;  Loclirano 
r.  Solomon,  38  (ia.  290.  In  Hancock  v.  Colyer,  99  Mass.  1S7,  the  garnishees 
answered  that,  at  tlie  time  of  the  service  of  the  writ  upon  tlicin,  they  had  ia 
their  hands  a  clieck  for  a  largo  sum  of  money,  payahle  to  their  order,  and 
received  by  thenj  under  special  instructions  from  the  ju<lgment  dehtor  to 
accept  it  in  satisfaction  of  a  judgment  in  his  favor  against  a  tliir<l  person. 
After  «uch  ^jer^•lce  they  presented  the  cheek,  received  the  proceeds,  and  paid 
them  over  to  the  defendant  in  execution.  The  court  said:  "The  check  of  a 
third  party,  payable  to  the  order  of  the  supposed  trustee,  ia  not  attacliahlo  by 
trustee  process.  It  is  nr>t  money,  gofxls,  effects,  or  credits,  in  the  sense  of  the 
statute.  It  may  never  Ihj  paid.  Tl»e  liability  of  the  trustee  to  tl>o  principal 
defendant  is  therefore  contingent."  To  the  same  effect,  Knight  r.  Ikiwley, 
117  .MaM.  551. 

'  Maine  F.  &.  M.  Ins.  Co.  r.  Weeks,  7  Mass.  408;  Perry  v.  Coates,  9  Mass. 
637;  Dickenson  r.  Strong,  4  Pick.  57;  Andrews  r.  Ludlow,  5  Pick.  28;  Lupton 
r.  Cutter,  8  Pick.  298;  iiorn  v.  Clisby,  8  Pick.  555;  (Juild  r.  Holbrook.  11  Mass. 
101;  Hopkins  r.  Kay,  1  Met.  79;  Mc.Mcacham  r.  McCori»itt,  2  .Met.  352;  .^ar- 
geant  r.  L<dand,  2  Vt.  277;  Hitchcock  r.  Edgerton,  8  Vt.  202;  Smith  v.  K.  & 
P.  R.  R.  Co.,  45  Me.  547;  Price  v.  Brady,  21  Tex.  014. 


§  UVJ     riJlSONAL   rUOPKUTY   SUIUKtl'  TO  C  AUNISllMKNT.        til 

of  a  rlioso  ill  action  lia-^  Ixtii   In  K1  cliartj^oablo,  except 
l>v  \irtur  i»t"  i\|tri>>s  statutory  provisionn.' 

J;  162.  Reaches  Legal  Debts  only.  -  (iariiishnicnt, 
^vlu'tlu•r  inatlo  uiulcr  an  attarlmuMit  or  uiulcr  an  exe- 
cution, is  a  loLCal,  and  imt  an  ((luilalilc,  j)rocecdinj^.  The 
court  can  take  no  notice  of  tlel)ts  duo  li}'  the  *j;arnislieo 
to  the  (lefi'ndant.  unless  tliese  debts  could  have  l)ecn 
enforced  l»v  the  dcfiMidant  aLrainst  tlie  Lfarnishee  in  an 
action  at  law.  AN'hcncver  statutes  liave  authorized 
the  garnishnuMit  of  debts,  they  liavc  uniforndy  been 
limited  in  their  api>liiation  to  lei^al  debts."  Hence,  if 
a  jud<jfnient  is  entered  in  favor  of  A,  for  the  use  of  B, 
it  <'aiuiot  be  garnished  by  the  creditors  of  the  latter. 
"  Wliile  our  statute  in  regard  to  garnishment  is  com- 
prehensive in  its  provisions,  we  do  not  think  equitable 
claims  can  be  subjected  to  the  process.  The  terms 
employed  are  '  indebted,'  or  'hath  any  effects  or  estate' 
in  liis  charge,  enumerating  'lands,  tenements,  goods, 
chattels,  moneys,  choses  in  action,  credits,  and  effects.' 
The  '  effects  or  estate,'  spoken  of  in  the  charge  or  cus- 
todv  of  the  Lfarnishee,  must  bclouLC  to  the  defendant  in  at- 
tachment,  or  judgment  debtor,  and  the  choses  in  action 
or  credits  must  be  due  or  owing  to  him,  and  evidently 
must  be  of  a  legal,  and  not  equitable,  character."^  An 
assiixnini'iit  liavint^  been  made  to  trustees  for  the  benefit 

'  Tliua  in  New  IIamp8liire,  a  liaike  of  choacB  in  action  can  now  1)o  1r1<1  as 
A  tniHtce.  Fling  r.  GiHidail,  40  N.  II.  208.  But  it  w;ia  otherwise  until  the 
[tasHa^c  of  the  present  statute.  Stone  v.  I)ean,  5  N.  H.  502;  Fletcher  v. 
Fletcher,  7  K.  11.  4.Vi;  28  Am.  Dec.  359;  Howland  v.  Spencer,  14  N.  H.  530. 

»  Harrell  r.  Whitman,  19  Ala.  i:{5:  Kohy  r.  Lahuzan,  21  Ala.  GO;  50  Am. 
Dec.  2.37;  (;o.l<len  r.  Pieruon,  42  Ala.  370;  (irain  r.  Aldrich,  .18  Cal.  520;  Hoyt 
r.  .Swift,  13  Vt.  129;  37  Am.  Dec.  586;  May  v.  Baker,  15  111.  89;  Lowry  r. 
Wright.  15  111.  95;  Patton  r.  Smith,  7  Ircd.  438;  Oillia  r.  McKay,  4  I>ev.  172. 

»  Wclwtcr  r.  Steele,  75  111.  544;  Nctler  v.  Chicago  Bank,  12  111.  App.  007; 
Perry  r.  Barnard,  7  li.  I.  15. 


445      PERSONAL  PROPERTY  SUBJECT  TO  GARXISHMEXT.     §  1G2 

of  creditors,  in  trust  to  convert  the  property  into  money, 
and,  after  paying  the  expenses  of  the  trust,  to  distribute 
the  remaining  proceeds  'pro  rata  among  the  creditors  of 
the  assignor,  an  attempt  by  garnishment  was  made  to 
reach  in  the  hands  of  the  trustees  the  interest  of  one 
of  the  creditors  of  the  assignor  in  the  funds  which 
would  ultimate!}^  be  due  him  as  his  pro  rata  of  such 
funds.  The  trustees,  however,  liad  not  completed  their 
duties  by  disposing  of  all  the  property.  It  was  there- 
fore held  that  the  right  of  the  creditors  was  not  a  legal 
right  or  interest  in  the  funds  then  in  the  possession  of 
the  trustees,  but  at  most  the  right  to  compel  in  equity 
the  execution  of  the  trust;  and  hence,  that  it  was  not 
subject  to  garnishment.^  In  West  Virginia,  "where 
the  garnishee  owes  a  debt  to  the  defendant  in  exe- 
cution,  or  has  an  estate  of  his  in  his  hands,  and  the 
character  of  his  liability  is  such  that  it  might  be  en- 
forced in  a  common-law  suit  by  an  action  of  debt,  det- 
inue, or  some  other  appropriate  personal  action,"  then 
the  garnishee  may  be  proceeded  against  by  process  of 
garnishment.  "But  when  the  liability  of  the  garnishee 
is  such  that  it  can  onbj  be  enforced  in  a  court  of  equity, 
the  garnishee  process  is  entirely  unsuitcd  to  enforce 
it";  and  the  judgment  creditor  is  by  statute  au  lior- 
ized  to  bring  suit  in  equity  in  the  name  of  the  sheriff." 
The  rule  subjecting  none  but  legal  debts  to  garnisli- 
ment  is  applicable  in  states  where  law  and  equity  juDs- 
dictions  are  blended  in  practice  and  administered  by 
the  same  courts.  "It  is  well  settled  that  the  word 
'debt,'  as  used  in  the  law  of  garnishment,  includes  only 
legal  debts,  —  causes  of  action  upon  which  the  defend- 
ant, under  the  common-law  practice,  can  maintain  an 

>  Mom.  Nat.  Ikink  r.  Bullock.  I20Ma8fl.  86. 
'  Swaua  V.  Suimuern,  I'J  W.  Va.  VZo. 


§  hV.'ft    VERSONAL   nUll'KUTY   SUIVIECT  TO  OARXISHMENT.     -JIG 

action  of  il -ht.  or  imhbilatus  assumpsit,  and  not  nicro 
tMjuity  i-lainis." ' 

;<  162  a.  Rights  Which  the  Judgment  Debtor  has 
the  Option  of  Enforcing  or  not  aro  not  snbjcct  to  p^ar- 
inshment.  This  iiilo  lias  hcon  invoked  and  applird 
where  the  deienthint  in  execution  had  paid  usurious 
interest,  which  tlio  judgment  creditor  in  etlect  souj;ht 
to  recover  by  c^arnisinnent.  The  defense  of  usury  is 
p^enerally  regarded  as  n,  personal  privilege,  and  the  pa}^- 
nient  of  usurious  interest  voluntarily  made  is  treated 
as  a  valid  appr(»priation  of  the  moneys  by  the  payee, 
at  least  UDtil  the  payor  elects  to  disatHrm  the  })ayment, 
and  treat  the  usurious  interest  as  moneys  held  for  his 
use  and  benefit.  Until  tlie  payor  has  made  his  election 
to  treat  tlic  payment  as  void,  and  reclaim  the  moneys 
paid,  he  has  no  cause  of  action  against  the  payee.  The 
debtor  of  the  payor  cannot  compel  him  to  make  such 
election,  and  there  can  therefore  be  no  perfect  cause  of 
action  against  the  payee  to  be  a  proper  subject  for  gar- 
nishment.- The  same  principles  lead  to  the  denial  of 
the  right  to  garnish  a  stockholder  in  a  corporation 
who  has  not  paid  in  full  the  amount  subscribed  by 
him  to  its  corporate  stock,  where  his  duty  to  complete 
such  i)aymcnt  is  by  law  dependent  upon  an  assessment 
or  call  therefor  being  made  by  the  corporation.  No 
cause  of  action  exists  against  him  in  the  absence  of 
such  call  or  assessment,  and  garnishment  is  a  ]>roceed- 
ing  which  can  neither  compel  the  requisite  action  by 
the  corporation  nor  make  its  absence  innnatorial.'' 

>  Ha88ie  f.  G.  I.  W.  U.  C,  :ir>  Cal.  385;  Cook  v.  W.althall.  '20  Ala.  .S.lt;  Lun- 
die  r.  BratUor-l,  2G  Ala.  512;  Self  r.  Kirklaiul,  24  Ala.  27.5;  Nesbitt  v.  McClan- 
ahan,  .30  Ala,  68;  Victor  r.  H.  F.  Ins.  Co.,  33  Iowa,  210. 

^  Ertlett  r.  IUkIcs,  1  IJ.  Mon.  31(3;  (Irahain  r.  Moore,  7  B.  Mon.  53;  lioardman 
r.  Roe.  13  Ma«a.  104;  Barker  v.  Esty,  10  Vt.  131 ;  Ilaiiaom  v.  Hays.  30  Mo.  415. 

»  McKelvey  r.  Crockett,  18  Nev.  2.38;  Browu  v.  Union  Ins.  Co.,  3  La.  Ann. 
177;  Biugliain  v.  Uudbiug,  5  Ala.  405. 


447       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §163 

§  163.  Must  be  Payable  in  Money.  —  It  is  essential 
that  the  obHgation  existing  against  the  garnishee  in 
favor  of  the  defendant  should  be  pa3'able  in  money.^ 
Therefore,  a  demand  pa^'able  in  "store  accounts,'""  or 
**note3,"^  or  "saddlery,"*  or  "castings  and  iron,"^  or  in 
•work  or  labor,"  or  in  board,^  or  "in  groceries  and  pro- 
visions to  live  upon,  as  called  for,"^  cannot  be  reached 
by  garnishment.  In  all  these  cases  it  is  obvious  that 
the  court  cannot  compel  the  garnishee  to  pay  a  certain 
sum  of  money  into  court,  for  that  would  be  to  compel 
him  to  change  a  contract  for  the  delivery  of  specific 
property  or  the  performance  of  specified  services  into  a 
contract  to  pay  money;  nor  can  the  court  enter  a  judg- 
ment payable  in  services  or  in  property  other  than 
money.  In  response  to  a  garnishment,  the  garnishee 
answered  that  Ijo  liad  purchased  of  the  judgment 
debtor  a  tract  of  land,  and  had  given  him  four  sev- 
eral written  contracts  to  make  four  annual  payments 
of  four  bales  of  lint  cotton,  each  weighing  five  hundred 
pounds.  In  discharging  tlie  garnishee,  the  court  said : 
"Garnislimcnt  is  a  proceeding  of  purely  statutory  crea- 
tion unknown  to  the  common  law,  and  while  we  are 
inclined  to  construe  it  favorably  as  highly  remedial 
and  beneficial,  wo  have  no  power  to  originate  machin- 
ery or  process  ])y  which  to  adapt  it  to  conditions  which 
its  statutory  provisions  are  not  broad  enough  to  cover. 

'  Weil  V.  Taylor,  4:J  Mo.  581;  McMinn  r.  Hall,  2  Over.  32,S;  Joniiings  v. 
Summers,  7  How.  (MiHa.)4.j3;  IJartlett  v.  Wood,  32  Vt.  372;  Bri^'gs  r.  Beach, 
18  Vt.  115. 

»  Smith  r.  Chapman,  G  Pert.  305;  Deavcr  r.  Keith,  f>  Ired.  374. 

»  MimH  V.  Parker,  1  Ala.  421;  WiUartl  r.  Butler,  14  Pick.  550. 

«  Bl.iir  r.  Rhodes,  5  Ala.  G18. 

»  Nonhitt  r.  Ware,  .3!)  Ala.  08. 

•  Wrigley  i\  (leyer,  4  .MaHa.  101;  contra,  Loudcrinan  r.  Wilson,  2  Har.  &  J. 
379. 

">  Aldrich  r.  Br<iokH,  5  Post.  241;  Peehhfl  r.  Meeds,  %  Pa.  St.  150. 

•  Smith  i;.  Davis,  1  Wia.  447;  GO  Am.  Dec.  390. 


§  hVi     TERSOXAL  VROPERTY  SURTEl^T  TO  O.ARXISIIMENT.       4tS 

Tiio  i-ourt  liaviiiLj:  juiwcr  onl}'  to  ivndor  au  uncoiuli- 
tional  inoiuv  jiul^inont  against  tlie  j];"arnishce,  or  to 
concli'iim  |t(is()iial  rliattcls  in  liis  liaiuls,  it  t'arly  be- 
caino  a  qiU'stioii  wliat  drsrriiHion  of  drbt  or  lial)ility 
would  authorize  a  [)crsoMal  money  judi;nient  against 
the  garnislue.  It  was  settled  that  only  such  debts 
as  would  nuiintain  debt  or  vidchitatds  assumpsit,  if  sued 
on  by  the  defendant,  could  l)e  the  subject  of  such  eon- 
denniation  and  })(>rsonal  judgment.'  If  the  sum  due  or 
to  become  due  from  the  garnishee  may  be  paid  by  liim 
in  his  negotiable  promissory  notes,  he  cannot  be  held, 
because  the  creditor  has  no  power  "to  interfere  with 
this  contract,  and  to  compel  the  other  party  to  pay  it 
in  money,  instead  of  giving  the  note.""  Where,  how- 
ever, the  proceeding  by  garnishment  or  trustee  pro- 
cess can  reach  not  merely  debts,  but  also  effects  of  the 
defendant,  it  may  be  that  the  garnishee  can  be  com- 
pelled to  surrender  any  specific  article  to  which  the 
defendant  is  entitled  from  him.'  In  Iowa,  where  a 
irarnishce  had  given  his  note  for  five  hundred  dollars, 
payable  "in  merchandise  or  trade  at  his  store,  as  the 
same  might  be  demanded,"  it  was  said  that  a  judgment 
should  have  been  entered  against  him  for  the  amount 
of  the  note,  "to  be  discharged  in  goods  or  merchan- 
disc  at  a  fair  value,  to  be  placed  at  the  disposal  of  the 
sheriff."* 

§  164.  Contingent  1  abts.  —  Debts  which  arc  due 
contingently,  and  which  therefore,  may  never  become 

•  Jon<;3  r.  Cri.'Ws,  Gl  Ala.  .'571. 

»  Fuller  V.  O'Brien,  IJl  Mass.  422. 

»  Comutock  r.  Faniutn.  2  Ma-ts.  90;  Clark  v.  King,  2  Ma«H.  524. 

*.Stadlerr.  Parmlte,  14  Liwa,  17.").  For  form  of  judgment  against  gamishco 
when  he  owes  a  debt  payable  in  specified  bonds,  see  King  v.  Hyatt,  41  Pa.  St. 
229. 


440       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §104 

due,  are  not  subject  to  garnishment/  In  Vermont,  a 
note  was  given,  payable  when  the  payee  or  hi  3  heirs 
sliould  clear  off  certain  encumbrances  then  existing  on 
a  specified  tract  of  land.  Trustee  process  was  served 
on  the  maker  of  the  note.  The  supreme  court,  in 
determininor  whether  he  could  bo  changed  under  such 
process,  said:  "The  note  set  forth  in  the  disclosure  is 
payable  on  a  condition.  This  was  a  condition  _precc(/c.'.f, 
and  the  note  was  payable  upon  a  contingency.  It  was 
not  a  debt  iii  prsesentiy  to  be  discharged  in  futuro.  lis 
becoming  a  debt  rested  in  contingency.  Until  tiie 
condition  was  performed,  no  indebtedness  existed;  and 
no  right  of  action  would  ever  accrue  on  the  note,  in 
favor  of  the  payee,  against  the  maker.  It  is  well 
settled  in  England,  under  the  process  of  foreign  attach- 
ment, that  no  liencsLn  be  acquired  upon  a  debt  the  very 
existence  of  which  is  dependent  upon  a  contingency,, 
for  the  very  satisfactory  reason  that  it  is  no  debt. 
The  same  principle  has  been  and  must  be  applied  to 
the  trustee  process  given  b}'  statute  in  many  of  the 
states.""     To  assist  a  better  understanding  of  the  rule, 

'  McCormick  v.  Kehoe,  7  N.  Y.  Leg.  Ob.s.  184;  Haven  ?•.  Wcntworth,  2  N.  H. 
93;  Burke  v.  Whitcomb,  13  Vt.  4'21;  Tucker  v.  Clisliy,  12  Pick.  22;  Robert* 
V.  Drinkhanl,  3  Met.  (Ky.)  .309;  Wciitwortli  v.  Wliittcmore,  1  Mass.  471;. 
Talier  r.  Nye,  12  Pick.  105;  Ru»:jell  r.  Cliiigan,  33  Miss.  535;  Harris  v.  Aiken, 

3  Pick.  1;  SaywarJ  v.  Drew,  G  Me.  203;  Frotliiiigham  r.  Haley,  3  Mass.  OS; 
Kettle  r.  Harvey,  21  Vt.  301;  Biihoi)  r.  Voiuig,  17  Wis.  40;  Bates?-.  N.  O.  J. 
&  G.  N.  R.  R.  Co.,  4  Abb.  Pr.  72;  13  How.  Pr.  510;  Baltiuioro&  0.  R.  R.  Co. 
r.  Gallahue,  14  Gratt.  o(;3;  Davis  r.  Hain,  3  Mass.  33;  Wood  v.  Partri<lgL>,  11 
Ma»a.  488;  Clement  v.  Clement,  19  N.  H.  400;  Shearer  v.  Handy,  22  Pick. 
417;  Maduel  r.  Mou.^iHcaux,  29  La.  .Vrui.  228. 

'  Burke  r.  Wliitcomb,  13  Vt.  423.  For  cases  discussing  and  determining 
the  qnestion  wliat  demand.*  are  contingent,  see  Cutter  v.  Perkins,  47  Me.  557, 
Williams  r.  Marston,  3  I'ick.  05;  (Jnild  v.  Holbrook,  11  Pick.  101;  Rich  /-. 
Waters,  22  I'ick.  503;  WcKjdard  r.  Herbert,  24  -Me.  358;  Ingall.H  r.  Dennett,  0 
Me.  79;  Thorndike  »•.  Do  Wolf,  0  Pick.  120;  Downer  r.  Curtis,  25  Vt.  050; 
Dwincl  1:  Stone.  30  Me.  .38^1;  Wd.ton  /•.  Wood,  34  Me.  123;  Willard  v.  Shcafe, 

4  Ma«».  2.35;  Grant  v.  Shaw,  10  Maas.  3^11. 

Vol.  I.-:j 


I  ltV4     I'KIWOXAL  rUOPEKTY   SUBJElT  TO  OARNISHMKNT.       450 

WO  sIkiII  rofiT  to  8(Hnr  of  tho  cases  iti  wliich  its  applica- 
tion has  Ikvu  souvjht.  A  sdiool-toachor  luivinjjf  boon 
oinployod  to  toaoh  ^ov  the  wintrr  t»  rin.  undi  r  a  oon- 
tnu't  providi!!;^  that  Iio  should  "m-ovcr  no  part  of  his 
oaniin;4s  until  the  tcrni  of  school  should  havt;  In-cii  fully 
coniplctci.!,"  the  sch«»ol  district  was  {garnished  as  his 
crediU)r  after  h«'  hail  tau^jht  ahout  two  nitnitlis,  hut  hc- 
foro  tho  tt^Tin  was  coui[)U'tod,  and  the  court  dotorminod 
that  such  «:farnishnjcnt  was  unavailinijf,  hccauso  tho 
teacher  niii^ht  never  conipKti;  the  term,  and  if  so,  ho 
wouKl  never  heconie  ciititli'd  to  any  compensation/ 
So  where  a  builder  had  entered  into  a  written  contract 
to  perform  certain  work  within  a  time  desi;j;nated  and 
accordiuLj  to  certain  j)lans  and  specifications,  and  had 
stipulated  to  pay  three  dollars  for  each  day  the  job 
should  remain  unfinished  after  the  day  designated  for 
its  completion,  it  was  held  that  a  garnishment  before 
the  completion  of  the  work  was  ineffectual,  because  it 
could  nt)t  be  known  whether  the  work  would  ever  bo 
completed,  nor,  if  completed,  what  amount  nmst  be 
deducted  from  the  contract  jjrice  for  delay  in  such  com- 
}>letii>n."  A  farm  was  sold,  the  purchaser  agn.'cing  to 
cultivate  the  land,  and  to  deliver  "to  the  grantee  stip- 
ulated portions  (»f  tho  crops  raised  thereon"  for  several 
years  thereafter.  Being  sued  f'»r  damages  for  not 
delivering  crops  as  stipulated,  he  urged  in  his  defense 
that  he  had  l)een  garnished  by  a  creditor  of  his  vendor. 
Tiie  garnishment  was  decided  to  be  inoperative,  because 
at  the  time  of  its  service  the  debt  (jr  liability  sought  to 
be  reached  de[)ended  on  a  contingency.'  A  conductor 
of  a  street  railway  com[)any  was  entitled  to  $G.7o  for 

'  Norton  r.  Soulc,  75  Me.  38."). 
'  JI..I»pM>u  .-.  J>inaii,  48  .Mich.  •il2. 
*  Rfiiiihart  r.  liiirJcaty,  17  Ncv.  141 


4'1       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  164 

wages,  but  he  owed  the  company  $4.57  for  money 
received,  and  had  in  his  possession  tickets  intrusted  to 
him  to  srll  of  the  vahie  of  $5.  By  his  contract  with 
the  company  he  was  required  to  account  to  it  for  these 
tickets,  either  by  paying  tlierefor  in  money  orby  allow- 
incr  their  value  in  reduction  of  the  amount  due  him  for 
wages.  It  was  held  that  the  company  could  not  be 
held  as  garnishee,  because  "whether  it  owed  an3'thing 
depended  upon  the  contingency  or  condition  that  the 
conductor  should  return  the  tickets  in  his  hands,"  ^ 
If  a  contract  is  made  whereby  the  promisor  agrees 
to  pay  the  promisee  certain  sums  at  stated  periods 
durincT  the  life  of  the  latter,  sums  which  have  become 
due  absolutely  may  be  garnished;  but  it  is  otherwise 
as  to  sums  not  so  due,  because  their  becoming  due  is 
dependent  on  the  contingency  of  the  continuance  of 
the  life  of  the  promisee.^  If  the  amount  to  which  a 
contractor  on  a  railroad  is  entitled  lor  work  done  un- 
der his  contract  is  or  may  be  subject  to  forfeiture  for 
divers  causes  specified  in  such  contract,  it  cannot  be 
garnished.^  Rents  uidess  due  absolutely  and  uncon- 
ditionall}'  are  not  .subject  to  garnisliment,  because  their 
coming  due  is  dependent  on  the  continuance  between 
the  parties  of  the  relation  of  landlord  and  tenant  with 
respect  to  the  prof)erty  leased.*  A  mail  subcon- 
tractor agreed  with  the  principal  contractor  to  carry 
the  mails  for  seventy-five  dollars  per  quarter,  provided 
he  sliould  fulfill  all  the;  requirements,  conditions,  and 
stipulations  contained  in  a  contract  with  the  postmastcr- 

'  Fellowi  r.  Smith.  131  Maw.  302. 

»  .S.il.in  r.  (Vh.imt.  1.'»  (iray.  Ti.TJ;  .Sayiinl  r.  Pnw,  0  Mc.  20.3. 
»  Baltimoro  cUr.  R.  It.  r.  (tall.ihuc'ti  A.lmr.  It  (;ratt.  r»C3;  StrauM  r.  R.  R. 
Co.,  7  W.  Vo.  3<'>8. 

♦  TliDrp  r-,  iVciiton,  42  Micb,  511;  contra,  R(.wcll  v.  Filkcr,  54  Vt.  520, 


§  hV4    rnusoxAL  ruorKUTV  sinuKn-  to  nAUNisiniKXT.     ins 

ijonoral.  ravmont  was  not  to  1h>  iiiatlc  to  tlic  sul)- 
ctintnu'tor  until  \\\c  juiniipal  nt'rivcd  his  pay  iVoin  tlio 
«''t)ViM"nn)ont.  nor  unless  rNidi-ncr  ot'  thr  scivici'  should 
bo  ivcoivod  by  thr  tK'i>aituiont.  Tho  nioni-ys  to 
boconio  duo  tho  sulu-ontraotor  woiv  8ou;^ht  to  bo  gar- 
nishod.  thouij:li  thoy  had  not  boon  paid  to  the  principal, 
nor  had  any  cvidonco  boin  furnishod  the  department 
o(  tho  rendition  of  the  service.  The  court  said:  "It 
is  contiui^ont  whothor  the  required  evidence  of  service 
\vili  ever  be  I'urnished  the  department,  and  if  not 
furnished,  there  is  nothinj:]^  due  the  trustee  or  the 
defendant.  The  claim  of  tho  dofondant  against  the 
trustee  is  contingent.  It  is  not  absolutely  due,  but 
tlic  trustee  is  not  to  be  charged  where  his  liability 
rests  upon  a  contingency."^  On  the  other  hand,  if 
there  is  no  contingency  with  respect  to  the  liability, 
the  debt,  it  is  said,  may  be  garnished,  although  some 
further  act  nmst  be  done  to  fix  its  auiount  or  value, 
provided  the  act  is  one  to  the  performance  of  which 
the  judgment  debtor  is  entitled.^  So  if  the  debt  is 
absolute,  it  may  be  garnished,  although  the  debtor  has 
the  right  to  elect  the  mode  in  which  it  may  be  paid,  as 
where  he  having  purchased  personal  property  has  the 

>  Larrabee  r.  Walker,  71  Me.  441.  See  also  Early  v.  Ilcdwooil  City,  57 
Cal.  193. 

'  Ware  v.  Gowen,  05  Me.  53i.  In  this  ca.se  the  dcfemlant  had  performed 
•work  iu  the  construction  of  a  radroad,  under  a  contract  which  entith-d  hini  to 
payment  upon  the  estimate  and  certiticate  of  an  engineer  named  in  such  con- 
tract. Tlie  court  said:  "  Was  the  pay  for  the  work  due  absolutely,  and  not  on 
any  contingency  at  tlic  time  of  tho  service  of  the  writ  ?  "  Wo  think  by  tho 
true  conntruction  of  the  contract  it  waa.  The  work  had  been  performed. 
Tlicre  waa  nothing  further  for  tho  contractor  to  do  to  be  entitled  to  pay.  It 
only  remained  f«>r  the  engineer  to  measure  the  work  and  make  hia  estimate  in 
order  to  fix  the  amount  to  be  paid.  If  tlie  engineer  shoul.l  neglect  or  uiirea- 
Booably  refuse  to  make  an  estimate  and  certificate  of  tlic  work,  it  would  not 
ileprive  the  contractor  of  his  right  to  pay,  but  he  might  bring  hia  suit,  and 
j)ro%-e  the  amount  of  the  work  in  some  other  way. 


453       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  164 

right  either  to  return  the  property  or  to  pay  a  stipu- 
lated price  therefor  within  a  prescribed  period.^  A 
debt  is  not  to  be  regarded  as  contingent  merely  be- 
cause the  mode  of  book-keeping  used  by  the  parties 
is  such  that  the  apparent  indebtedness  shown  by  such 
books  is  liable  to  be  changed  by  subsequent  investiga-  . 
tions,  which  may  show  that  some  of  the  charges  made 
did  not  in  fact  represent  existing  liabilities  against  the 
party  charged.^ 

In  Michigan,  the  statute  relating  to  garnishment 
now  provides  that  the  garnishee  shall  *'  be  liable  on  any 
contincrent  rioht  or  claim  ao^ainst  him  in  favor  of  the 
principal  defendant."  In  construing  this  statute,  the 
supreme  court  of  that  state  excludes  all  contingencies 
"depending  on  the  will  and  ability  of  the  debtor  to 
earn  the  money."  Hence  if  after  a  building  contract 
has  been  entered  into  a  garnishment  is  served,  it  can 
reach  nothing  beyond  moneys  then  actually  duo.  If 
a  ditfcrcnt  construction  were  adopted,  a  garnishment 
could  be  served  as  soon  as  the  contract  was  made,  and 
the  builder  thereby  deprived  of  all  credit,  and  there- 
fore of  all  means  of  performing  his  contract.  No 
advances  or  payments  could  be  made  on  the  work, 
because  of  their  prior  appropriation  by  the  garnish- 
ment; and  both  parties  would  be  forced  to  abandon 
the  contract.  "  No  doubt  the  cmplo3-er  has  a  claim  in 
such  a  case  that  the  builder  shall  perform  his  contract; 
but  the  contingency  on  which  the  money  is  payable  is 
one  dependent  on  the  subsequent  earning  of  the  money. 
It  is  therefore  a  contingency  depending  on  the  will 
and  ability  of  tlie  (lol)tor  to  earn  money, — a  will  which 
it  may  generally  l>e  assumed  will  not  be  exerted  where 

•  Smith  r.  Caboon,  37  Mo.  281. 

»  Wagon  Co.  v.  Peterson,  '21  W.  Va.  339. 


§l(Via     PEU.'^ONAL   TROrERTY   SUIUFX^  TO  CJARNISIIMKNT.     4r>4 

(«nniiiin"  i>i  not  to  lu"  lollowrd  liy  cnjoynunt.  If  i]\vro 
is  ;i  contiiij^iMit  claim  \\rrc,  so  thori'  is  wlitii  a  l;il)()nu' 
hiri's  (Uit  t'lir  a  vcai".  ti>  In-  paid  at.  tlir  cmkI  d  tlii>  yoar; 
and  Iiis  (Ti'ditor  iiiuy  {j^arnish  us  soon  as  the  liiriug  takes 
j>hu'c.  It  would  1)0  a  sai'o  u-suniption  that  vory  little 
labor  wouKl  ho  douv  under  the  hiriiij;  after  the  claim 
wasi'-arnished."'  Tlio  demand.  thou<di  contiii^cjcnt  when 
the  L^aniishce  is  summom'd,  may  he  transformed  into 
an  ahsolute,  unconditional  indebtedness  l)efore  the  time 
fi)r  the  entry  of  jud^^inent.  It  has  sometimes  been 
held  that  this  transformation  cannot  render  him  charge- 
able, because  his  liabUity  must  exist  at  the  service  of 
the  writ."  In  other  cases  it  has  been  adjudc^cd  that 
he  is  charijjealde  for  all  debts  due  and  certain  at  the 
time  of  the  answer  or  disclosure,  though  contiugeut 
when  the  writ  was  served.' 

§  164  a.  Claims  against  Insurance  Companies  for 
losses  against  which  they  have  issued  policies  form  a 
prominent  class  of  debts  not  subject  to  garnishment, 
because  subject  to  contingencies.  Indeed,  it  has  been 
lield,  and  so  far  as  wc  know  without  dissent,  that  claims 
for  loss  of  property  destroyed  by  fire  cannot,  until  their 
adjustment,  be  garnished,  because  they  arc  mere  claims 
for  unliquidated  damages.*  In  most  cases  of  insurance 
against  1<jss  by  fire,  the  insurer  reserves  the  right,  in- 
stead of  paying  the  amount  of  such  loss,  of  repairing 
or  rebuilding  the  property  injured  or  destroyed.  Until 
he  has  made  his  election  not  to  rebuild  or  repair,  it 
cannot  be  known  that  any  sum  of  money  will  ever  bc- 

»  Wcl.Wr  V.  Bolte,  51  Mich,  ll.'i. 

'  W.lliaiiiH  V.  A.  &  K.  K.  K.  Co.,  36  Me.  201;  8  Am.  Dec.  742;  Mace  ». 
HcaM,  30  Me.  130. 

»  Franklin  F.  Ins.  Co.  r.  West,  8  WattH  k  S.  3.'>0. 

♦  liucklin  V.  Powell,  60  N.  11.  1 1'.);  Mclvrcn  v.  Turner,  4o  N.  H.  203. 


\ 


455       PERSONAL  PROPERTY   SUBJECT  TO  GARNISHMENT.     §165 

come  clue  from  him  under  his  poUcy,  and  he  therefore 
cannot  be  garnished.^  Where  a  pohcy  of  hfe  insurance 
has  issued,  the  insurer  cannot  be  garnished  during  the 
existence  of  the  life  of  the  assured,  because  it  is  not 
certain  when  nor  whether  any  sum  will  ever  become 
due  on  the  policy.^  In  the  ca>e  of  the  insurance  of 
property  against  loss  by  fire  or  other  causes,  the  policy 
generally  prescribes  sundry  acts  to  be  performed  by 
the  assured  after  the  loss  and  before  he  becomes  en- 
titled to  payment  therefor,  such  as  giving  due  notice, 
making  proofs  of  the  amount  of  the  loss,  furnishing  the 
certificate  of  a  maoistrate  that  he  believes  the  loss  was 
suffered  without  any  fraud  of  the  assured,  etc.  Until 
these  various  conditions  have  been  fulfilled,  the  liabil- 
ity of  the  insurer  is  contingent,  and  he  cannot  be  gar- 
nished.^ 

§165.  Debts  not  Due.  —  The  earlier  authorities  in- 
clined toward  the  view  that  a  garnishment  could  reach 
only  tho.se  debts  which  had  fallen  due,  and  which, 
therefore,  constituted  a  perfect  present  cause  of  action 
against  the  garnishee.''  But  it  is  now  a  very  generally 
recognized  rule  of  law,  that  a  debt  existing  in  favor  of 
the  garnishee,  not  due  at  the  service  of  the  writ,  but 
which  is  sure  to  become  due  at  a  future  period,  may  bo 
reached  both  under  execution  and  attachment.''     This 

>  Martz  r.  Detroit  Iqs.  Co.,  28  Midi.  201;  Godfrey  v.  McComber,  128  Mass. 
188. 

'  Day  V.  N.  K.  L.  Iiih.  Co.,  Ill  Pa.  St.  .'307;  .%  Am.  Rep.  21)7. 

»  GicH  r.  Ikclitner,  12  Minii.  27!»;  Katz  r.  Soniby,  34  La.  Ann.  588. 

♦  Dalton  V.  S<.lly,  Cro.  Kliz.  184;  Chiltlreaa  r.  Dickina,  8  Yerg.  11.'};  McMinn 
r.  Hall.  2  Tonn.  .328.  In  Rundlo  v.  Schootz,  2  Miles,  330,  salary  not  due  waa 
held  exempt  from  attachment,  and  in  Cany  v.  Day,  2  Milca,  412,  a  like  decision 
waa  ma<le  in  reference  to  an  annuity. 

»  Branch  iJank  v.  Poo,  I  Ala.  .'V.KJ;  Cottrell  v.  Varnum,  5  Al.v  220;  Fulwciler 
r.  HuglicH,  17  Pa.  440;  Dunn<-g.in  r.  Hyern,  17  Ark.  402;  (ilanton  »•.  (irigj^'s,  5 
Ga.  424;  Peace  v.  Jones,  3  Murph.  2J0;  Stcuart  r.  West,   1   liar.  &  J.  53G; 


§  Uk.     rKRSONAL   rUOrKUTY   SUB.TECT  TO  OARXIvSHMENT.       46G 

rulo  has  no  application  to  rutinv  continLjjciit  lial)ilities-/ 
nor  to  any  case  whriv  tlio  liability  of  the  dcfcMuhint  to 
the  gfarnishoo  ilcponds  ujion  tlit>  pciloi mancc  hy  tho 
latter  of  some  eondition  ])reeedent,  or  upon  his  full 
compliance  with  the  terms  of  some  unperformed  agree- 
ment or  contract."  The  debt  itself  must  he  in  existence 
at  the  time  of  the  service  of  the  writ,  iVcr  from  any 
contingency;  and  it  may  so  exist  though  the  time  stip- 
ulated for  its  payment  be  vcr}''  remote.  Hence  if  one 
is  under  a  contract  to  serve  another,  and  has  performed 
the  greater  portion  t»f  his  contract,  leaving  something 
yet  to  bo  cU)ne  before  he  is  entitled  to  any  comjiensation, 
as  there  is  nothing  due  to  him  absolutely,  there  can  be 
no  garnishment.^  If,  on  the  other  hand,  the  person 
performing  services  is  entitled  to  compensation,  free 
from  any  contingency,  though  the  time  for  payment 
has  not  arrived,  there  is  an  absolute  debt,  and  conse- 
quently a  proper  subject  for  garnishment.  If  some 
services  for  which  one  is  entitled  to  compensation  have 
been  performed,  and  other  services  for  which  he  will 
become  entitled  to  compensation  on  performance  re- 
main to  be  performed,  the  former  are  and  the  latter 
are  not  proper  subjects  of  garnishment,  though  all  are 
provided  for  in  the  same  contract.*  Whetlier  the  lia- 
bility of  a  lessee  for  rents  to  accrue  is  a  perfect  debt, 

Purscll  r.  Pappenheimer,  11  In.l.  327;  SheriflF  r.  Buckner,  1  Litt.  127;  Sayward 
f.  Drew,  G  Me.  2G3;  Willard  v.  Sheafe,  4  Mass.  23.j;  Walker  v.  Gil.bs,  2  Dall. 
211;  Fay  r.  Smith,  2.")  Vt.  010;  Clapp  v.  Ilaucock  Bank,  1  Allen,  394;  Nichols 
r.  Scofield,  2  R.  I.  123. 

»  See  §  164. 

» Robinson  r.  Hall.  3  Met.  301 ;  Daily  v.  Jordan,  2  Cush.  390;  Wyinan  v. 
Hinchliorn,  G  Cush.  204;  Raltimore  <t  O.  R.  R.  v.  Gallahue,  14  Gratt.  503; 
Baltimore  4  O.  R.  R.  v.  .McCullough,  12  firatt.  59.");  Ross  ?•.  McKiuny,  2  Rawle, 
227;  Kettle  v.  Harvey,  21  Vt.  .301;  Russell  v.  ClinKan,  .33  Miss.  535. 

»  Webljor  r.  Boltc,  51  Mich.  113;  Thomas  v.  Gibbons,  01  Iowa,  50. 

♦  B.  k  M.  R.  R.  Co.  V.  Thompson,  31  Kan.  ISO;  47  Am.  Rep.  497. 


457       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  165 

within  the  meaning  of  the  statutes  respecting  garnish- 
ment, is  a  doubtful  question.  On  the  one  liand,  it  is 
said  that  the  lessor  may  convey  the  property  to  a  third 
person,  or  the  lease  may  be  surrendered,  or  the  lessee 
may  be  ousted,  and  upon  the  happening  of  these  or 
other  possible  contingencies  may  be  exonerated  from 
any  further  liability  on  his  lease,  and  therefore,  that 
any  attempted  garnishment  must  prove  ineffective  under 
the  rule  inhibiting  the  garnishment  of  contingent  debts.^ 
On  the  other  hand,  it  has  been  decided  that  rent  to 
accrue  for  future  occupation  may  be  garnished,  and  that 
the  contingency  of  a  suspension  or  destruction  of  the 
lease  from  some  cause  is  not  one  of  the  contingencies 
relieving  tlie  lessee  from  liability  as  garnishee.-^  The 
court  intimated  that  if  any  contingency  should  subse- 
quently occur,  under  which  the  lessee  ought  no  longer 
to  be  held  answerable,  "he  must  avail  liirasclf  of  it,  in 
such  manner  as  the  law  will  permit";  but  what  "such 
manner"  shall  be  was  not  foreshadowed.  If  a  contract 
is  entered  into  with  a  municipal  corporation  to  build  a 
sewer,  to  be  completed  on  a  day  named,  and  to  be  paid 
for  a  certain  sum  per  lineal  foot,  a  garnishment  at  any 
time  prior  to  the  completion  of  the  work  is  not  per- 
mitted, because  the  contract  is  entire,  and  not  apportion- 
able,  and  prior  to  its  complete  performance  there  is  no 
existing  debt.'  So  under  a  contract  to  deliver  a  cer- 
tain  quantity  of  logs  in  a  designated  boom,  for  an  agreed 
price  i)er  thousand  feet,  there  is  no  debt,  and  therefore 
no  subject  for  garnishment,  until  the  logs  are  delivered 
as  aorreed.*     If  a  contract  of  sale  is  entered  into,  by  the 

>  Vogcl  r.  Preiton,  4'2  Mich.  51). 

»  Rowell  V.  Fclkcr,  r>4  Vt.  5'29. 

»  Coburn  t'.  City  of  Hartford,  .38  Coun.  290. 

*  Wheeler  v.  Day,  23  Minu.  545. 


g  ir.o    rnRsoNAL  troperty  suriect  to  oarnisiiment.     ac^s 

tonus  of  wiiic-h  no  croilit  is  to  he  given,  and  tlic  delivery 
ami  payment  arc  to  be  coneurrent,  no  debt  exists  from 
the  pureliasrr  to  tlie  selKr.  If,  in  such  a  case,  "the 
delivery  and  paynu'ut  were  to  be  simultaneous,  and  the 
goods  were  delivered  in  the  expectation  that  the  price 
would  be  immediately  paid,  the  refusal  to  make  pay- 
ment Would  be  such  a  failure  on  the  part  of  the  buyer 
to  perform  the  contract  as  to  entitle  the  seller  to  ])ut 
an  end  to  it  and  reclaim  the  goods."  Unless  the  seller 
consents  to  give  credit,  or  to  treat  the  sale  as  valid  and 
subsisting,  notwithstanding  the  want  of  payment,  there 
is  no  debt  due  him  which  can  bo  varnished.'  Althouixh 
debts  not  due  may  be  subjected  to  garnishment,  the 
garnishee  will  not  be  compelled  to  make  payment  of 
the  obligation  against  him  until  it  has  fully  matured. 
The  entr}'  of  the  judgment  against  him  will  bo  delayed 
till  the  debt  becomes  due  ;^  or  if  such  delay  be  not  made 
in  entering  the  judgment,  execution  thereon  will  be 
stayed,  as  the  justice  of  the  case  may  require.^ 

§  166.  Debts  in  Suit  or  in  Judgmont — At  an 
early  day  it  was  determined  in  the  states  of  Massa- 
chusetts* and  New  Hampshire^  that  a  debtor  could 
not  be  garnished  during  the  pendency  of  an  action 
again-t  him  for  the  recovery  of  a  debt.  This  position 
has  been  abandoned  in  both  of  these  states;"  and  it 
seems  now  to  be  very  generally,  and  perhaps  univer- 
sally, conceded  that  the  mere  pendency  of  a  suit  for 
the  collection  of  a  debt  will  not  place  it  beyond  the 

»Paulr.  Rc-cd,  52  N.  II.  13G. 

»  Wilson  r.  All)riyht,  2  G.  Crcenc,  125. 

»  Anilcreon  r.  Wauzor,  5  How.  (.Miss.)  587;  37  Am.  Dec,  170. 

♦  Gridky  v.  Harradcn,  It  Mass.  4%. 

*  Bumliarn  v.  loUorii,  5  N.  II.  506. 

•Tborndiko  r.  Do  Wolf,  G  Pick.  120;  Foster  r.  Dudley,  10  Feat.  463. 


459       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  166 

reach  of  garnishment  process.^  But  there  may  arrive 
certain  stages  of  the  suit  at  which  the  defendant  is  in 
many  of  the  states  no  longer  hable  to  garnishment. 
The  general  rule  upon  this  subject  seems  to  be  this: 
that  as  long  as  the  proceedings  are  in  such  a  condition 
that  the  defendant,  by  a  plea  in  abatement  or  other- 
wise, can  bring  before  the  court  the  fact  that  the  debt 
in  suit  is  attached  by  a  creditor  of  the  plaintiff,  and  can 
thus  shield  himself  from  the  liability  to  make  payment 
both  to  the  plaintiff  and  to  the  plaintiff's  creditor,  so 
lontr  the  defendant  mav  be  summoned  and  held  as  a 
garnishee.'  But  when  this  stage  has  been  passed, 
the  liability  of  the  debt  to  garnishment  is,  in  most  of 
the  states,  terminated.  Hence  a  debt  in  suit  cannot 
be  attached  after  a  verdict,^  nor  after  a  default,"*  nor 
after  an  award  made  therefor  by  a  referee.''  It  may 
happen  that  the  suit  is  pending  in  one  court,  and  that 
the  writ  under  which  the  garnishment  is  sought  to  be 
made  has  issued  from  another  court.  In  such  a  case, 
there  is  strong  reason  for  denying  the  right  of  garnish- 
ment, because  its  allowance  might  permit  one  tribunal 
to  interfere  with  the  proceedings  of  another.^     This  is 

'  Crabb  V.  Jone3,  2  Miles,  130;  Smith  v.  Barker,  10  Mo.  45S;  McCarty  v. 
Eincr,  2  Dall.  C77;  Sweeney  r.  Allen,  1  Pa.  St.  380;  Jones  v.  N.  Y.  R.  R.  Co., 
1  Grant  Caa.  457;  Foster  r.  Jones,  15  Mass.  185;  Locke  v.  Tippets,  7  Mass. 
149;  Hitt  r.  Lacy.  3  Ala.  104;  30  Am.  Dec.  440;  Huff  r.  Mills,  7  Ycrg.  42; 
Lieber  v.  St.  Louis,  30  Mo.  382;  McDonaKl  r.  Karney,  8  Kan.  20. 

'Wadaworth  v.  Clark,  14  Vt.  139;  Foster?-.  Dudley,  10  Fost.  403;  Thorn- 
dike  r.  Do  Wolf,  0  Pick.  120;  Trombly  r.  Clark,  13  Vt.  118. 

»  Eunson  r.  Healey,  2  Ma*is.  .?2;  Thayer  v.  Pratt,  47  N.  II.  470. 

♦Howell  r.  Freeman,  3  Mass.  121;  Kidd  r.  Shepherd,  4  Mass.  238;  Mc- 
Caffrey V.  Mwre,  18  Pick.  492. 

»  Holt  r.  Kirl.y,  39  Me.  IM;  Strout  r.  Clements,  22  Me.  292;  Caila  v.  El- 
goo<l,  2  Dowl.  k  It.  193;  Coi-pell  v.  Smith,  4  Term  Rep.  312. 

•Bingham  r.  Smith,  5  Ala.  051.  See  this  i>rinciplo  urged  against  the 
gamirihiiient  of  judgmcntH  in  Young  r.  Young,  2  Hill  (S.  C),  420,  and  in  Bnr- 
rull  r.  LcUioii,  2  Spcnra,  378.  In  Mieliigan,  a  dci)t  upon  which  an  action  has 
l>een  brouglit  liiforu  one  justice  of  the  peace  cannot  bo  garnished  under  process 
jssucd  by  another  justice.     Custer  v.  White,  49  Mich.  202. 


§  ItU*.     ri'.RSOXAL   rnorKRTY  SURTECT  to  garnishment.       400 

jvirtiriilarly  the  case  where  the  two  eoiirts  act  under 
niul  by  virtue  of  entirely  distinct  authorities.  Ilencc 
it  has  \)ccn  determined  that  a  debt  in  suit  in  one  of  the 
fetleral  courts  cannot  be  garnished  under  a  writ  issuing 
out  ot'  a  state  court, ^  nor  can  a  debt  in  suit  in  one  state, 
but  subsecjuently  garnished  in  another  state."  The 
garnishment  oP  debts  is  authorized  upon  the  theory 
that  the  garnishee  owes  something  to  the  defendant, 
which,  after  the  service  of  garnishment,  may  be  law- 
fully withheld  from  the  defendant,  and  appropriated 
to  the  payment  of  the  defendant's  creditors.  But 
when  the  debt  has  merged  into  a  judgment,  the  de- 
fendant has  no  right  to  delay  its  payment;  nor  has 
he  an}'  means,  aside  from  payment,  of  preventing  his 
property  from  being  taken  and  sold  under  execution 
for  the  satisfaction  of  the  judgment.  Therefore  it  has 
been  held,  in  a  majority  of  the  states,  that  a  debt  due 
by  judgment  cannot  be  reached  by  garnishment.^  In 
other  states  the  lanGTuacfe  of  the  statutes  is  so  broad 
as  to  embrace  debts  of  every  kind  and  nature;  and  in 
these  states  it  has  been  determined  that  a  judgment 
debtor  may  be  held  as  garnishee,*  even  if  the  execution 

'  Wallace  v.  McConaell,  1.3  Pet.  151;  Wood  v.  Lake,  13  Wis.  84;  Greeu- 
woo  \  V.  Rector,  Hemp.  708. 

*  Whipple  V.  Robbins,  97  Mass.  107;  Americaa  Bank  v.  Rollins,  99  Mass. 
313. 

3  Norton  v.  Winter,  1  Or.  47;  G'2  Am.  Dec.  297;  Black  v.  Black,  32  N.  J. 
Eq.  75;  Burnham  r.  Folsom,  5  N.  H.  5GG;  Sharp  r.  Clark,  2  Mass.  91;  Preseott 
r.  Parker,  4  Mass.  170;  Franklin  v.  Ward,  3  Mason,  13G;  Shinn  t-.  Zimerman,  3 
Zab.  150;  55  Am.  Dec.  2G0;  Sir  John  Parrott'.s  Case,  Cro.  Eliz.  G3;  Kerry  v. 
Bower,  Cro.  Eliz.  18G;  Norton  v.  Winter,  1  Or.  47;  G2  Am.  Dec.  207;  Esty  v. 
Flanders,  IG  N.  H.  218;  Clodfellow  v.  Cox,  1  Sneed,  330;  GO  Am.  Dec.  157; 
Trowbridge  v.  Means,  5  Ark.  135;  39  Am.  Dec.  3G8;  Tunstall  v.  Means,  5 
Ark.  700.  In  Massachusetts  a  jmlj^ment  may  now  be  reached  by  garnishment, 
if  it  remains  unpaid  for  one  year  after  its  entry.    Sabin  ?•.  Cooper,  15  Gray,  532. 

*  Jones  V.  N.  Y.  &  E.  R.  R.  Co.,  1  Grant  Cas.  457;  Skipper  v.  Foster,  29 
Ala.  .3.30;  G5  Am.  Dec.  405;  O'Brien  v.  Liddell,  10  Smedcs  &  M.  371;  Minarrl 
r.  Lawler,  26  111.  301;  Gray  v.  Henby,  1  Smedes  &  M.  598;  Belcher  v.  Grubb, 


461     PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMEXT.       §167 

has  been  levied  upon  his  property/  His  remedy,  in 
such  circumstances,  would,  no  doubt,  be  b}^  an  applica- 
tion to  the  court  in  which  the  judgment  was  rendered, 
showing  that  it  has  been  attached,  and  asking  for  a 
stay  of  proceedings  until  the  attachment  suit  can  be 
settled.  If,  howevef,  the  garnishment  is  under  pro- 
cess from  a  court  of  a  different  jurisdiction  from  that 
in  which  the  judgment  sought  to  be  garnished  was 
entered,  there  seems  to  be  no  doubt  that  the  garnish- 
ment cannot  be  permitted.  To  permit  it  would  prob- 
ably occasion  an  unseemly  conflict  between  independent 
judicial  tribunals,  in  which  the  one  would  seek  to  en- 
force its  judgment,  and  the  other  to  seize  upon  such 
judgment,  and  in  effect  transfer  it  to  a  stranger  to  the 
orig'inal  action.^ 

§  167.  Claims  for  Tort  or  for  Unliquidated  Dam- 
ages.— The  fact  that  the  person  summoned  as  gar- 
nishee is  liable  to  the  defendant  in  an  action  of  tort 
does  not  render  him  chargeable  under  the  garnish- 
ment.^ If  a  person  obtains  possession  of  goods  by  the 
commission  of  a  trespass,  he  cannot  be  charged  as  the 
trustee  of  the  person  against  whom  the  wrong  was 
committed.*  The  rule  is  the  same  where  the  person 
summoned  as  a  garnishee  is  liable  for  a  wrongful  con- 

4  Harr.  (Del.)  401;  Ilalbert  v.  Stinson,  G  Blackf.  398;  Gager  v.  Watson,  11 
Conn.  IGS;  Sweeney  v.  Allen,  1  Pa.  St.  380;  Fithiau  v.  N.  Y.  &  E.  R.  R.  Co., 
31  Pa.  St.  114;  Ochiltruo  ?•.  M.  I.  &.  N.  R'y,  49  Iowa,  150. 

»  Belcher  v.  Grubb,  5  Ilarr.  (Del.)  401. 

■•'  Sievers  v.  W.  S.  W.  Co.,  43  Mich.  275;  Noycs  v.  Fisher,  48  Mich.  273; 
Henry  v.  Gold  P.  M.  Co.,  15  Fed.  Rep.  049;  Young  v.  Young,  2  Hill  (S.  C), 
420. 

3  Getchell  v.  Chase,  37  N.  H.  100;  Foster  v.  Dudley,  10  Fost.  404;  Rund- 
lett  V.  Jor<lan,  3  Greenl.  48;  Ten  Broeck  v.  Sloo,  13  How.  Pr.  28;  2  Abb.  Pr. 
234;  Davenport  v.  Ludlow,  4  How.  Pr.  337;  3  Code  Rep.  00;  Hudson  v.  Plots, 
11  Paige,  180;  3  N.  Y.  Leg.  Obs.  120;  Hill?'.  Bowman,  35  Mich.  191. 

♦  Despatch  Line  v.  Bellamy  M.  Co.,  12  N.  II.  205. 


§  U-.7       TEliSOXAL   PROrERTY  SUBJECT  TO  OARNISHMENT.     462 

version^  of  property,  or  lor  a  brcacli  t)f  official  duty.'' 
"Garnishees  arc  roquircMl  to  answer  as  to  indebtedness, 
and  as  to  assets  or  property  in  linnd,  not  as  to  tho 
torts  they  may  have  eoiuniitted  ay,ainst  the  defendant 
iri  tho  suit."  Hence  tliere  can  be  no  garnishment  of 
a  liabihty  arising  from  such  false  representations  as 
Mould  sustain  an  action  for  deceit.^  If  an  officer 
wrongfully  levies  upon  property,  and  sells  it  under  exe- 
cution, but  no  payment  is  made  to  him  pursuant  to 
such  sale,  he  is  not  liable  for  money  had  and  received, 
but  cither  for  a  wrongful  levy,  or  for  negligence  in  not 
collecting  the  purchase  price.  In  either  event,  there  is 
not  such  an  "indebtedness,  right,  or  credit"  as  is  "  lia- 
ble to  be  seized  or  taken  under  attachment."*  If  a 
railroad  corporation,  in  the  construction  of  its  road, 
enters  upon  and  takes  certain  lands  for  railway  pur- 
poses, without  any  agreement  with  their  owner,  the 
claim  of  the  latter  is  "for  unliquidated  damages  for  a 
tortious  act,  such  a  claim  has  never  been  held  to  come 
within  the  attachment  laws."^  A  person  wronged  may 
be  in  a  condition  to  waive  the  wroni;  and  to  recover 
in  assumpsit.  The  right  to  make  tiiis  waiver  belongs 
only  to  the  injured  party.  Until  it  has  been  made, 
the  wronix-doer  must  be  res;Carded  as  a  tort-feasor, 
and  not  as  a  debtor,  and  cannot  be  charged  as  a 
garnishee.®  Where  a  claim  is  based  u])on  a  tort, 
its  character  is  not  changed  by  any  proceedings  ante- 
rior to  the  entry  of  judgment,  so  as  to  become  subject 
to  garnishment.      It  is  therefore   immaterial  that  an 

>Pauly.  Paul,  ION.  H.  117. 

»  Hemmenway  v.  Tratt,  23  Vt.  332;  Eomersoa  v.  Huffman,  1  Dutch.  625. 

'  Bates  r.  Forsyth,  09  Ga.  305. 

*  Lomerson  r.  Huffman,  1  Dutch.  632. 

''  Solheimer  v.  Elder,  98  Pa.  St.  154. 

•Lewis  V.  Dubose  &  Co.,  29  Ala.  219. 


463    PERSOXAL  PROPERTY  SUBJECT  TO  GARNISHMENT.       §  1G7 

action  has  been  commenced  in  which  the  default  of 
the  defendant  has  been  entered,  and  the  rif;ht  to  re- 
cover damages  thereby  conceded,  for  "the  office  of  a 
default  is  not  to  chancre  in  the  least  the  nature  of  the 
demand  in  suit,  but  merely  to  dispense  with  the  neces- 
sity of  certain  proof." ^  Nor  does  the  verdict  of  a  jury 
or  the  report  of  a  referee  in  an  action  for  tort  change 
the  nature  of  the  liability.^  It  merely  ascertains  the 
amount  of  the  damages.  Thus  where  a  city  was  gar- 
nished after  a  verdict  against  it  in  an  action  for  tort, 
the  court  said:  "The  ori^'inal  cause  of  action  did  not 
render  the  city  liable  as  a  trustee,  because  it  is  a  cause 
of  action  arisino:  from  tort.  The  verdict  on  it  did  not 
convert  it  into  a  debt;  no  action  of  debt  would  lie  on 
it.  It  could  not  constitute  a  debt  till  judgment  should 
be  rendered  upon  it;  and  when  judgment  was  rendered 
upon  it,  it  was  too  late  for  the  city  to  plead  it,  or  oth- 
erwise bring  it  to  the  notice  of  the  court.  The  city 
owed  the  principal  nothing  when  the  trustee  writ  was 
served."^  It  is  also  well  settled  that  a  claim  for  un- 
liquidated damages,  whether  for  torts  committed,  or 
for  breaches  of  contracts,  or  for  any  other  cause,  can- 
not make  the  person  against  whom  the  claim  exists 
liable  as  a  garnishee.^  Hence  there  can  be  no  garnish- 
ment of  a  liability  arising  out  of  a  bond  given  to  pay 
the  damag^es  which  micfht  result  from  a  wrongful  at- 
taclimont.^  This  rule  also  applies  when  a  lease  is 
made,  and  the  covenants  therein  are  afterward  vio- 
lated in  sundry  respects,  entitling  the  lessee  to  dam- 

'  Holcomlj  ?'.  Town  of  Winchester,  52  Conn.  448;  57  Am.  Rep.  608. 

'  Cra.icli  (,•.  Gri  Hoy,  G  Hill,  'J.)0;  Kellogg  v.  Schuyler,  2  Deuio,  73. 

»  Tiiayer  i\  Southwick,  8  C^ray,  '-'29;  Detroit  Po.st  v.  Reilly,  46  Mich.  459. 

♦  Hugg   r.  Biioth,  2  Iru'l.  2S'2;  Deaver  i\  Keitli,  5  Ired.    374;    Runsoui  v. 
Haye.i,  19  .\lo.  44.');  Rami  v.  White  Mountains  R.  R.,  40  N.  U.  7U. 

*  Puet  V.  McDauicl,  21  La.  Ann.  455. 


§  107     TERSONAL  TROPERTY  SUBJECT  TO  OARXISHMENT.       4G4 

aLlfos.'  A  i;nriiisliec  cannot  l)o  cluiri^rcl  for  any  sum 
ivcvivoil  l)y  liini  iVoni  tlir  di'loudant  lor  usurious  inter- 
est." This  is  not  because  the  ehiiin  rests  iu  tort,  or  is 
for  unruiuiilateil  damages,  but  rather  by  reason  of  the 
legal  princ-iple  that  the  right  to  recover  such  interest 
is  a  personal  j)rivlleg\\  depenchiig  for  its  existence  on 
the  election  of  the  party  wlio  made  the  usurious  pay- 
ment. No  very  precise  definition  of  a  liquidated  claim 
can  be  given;  and  if  given,  dilferent  minds  may  be 
unable  to  agree  whether  a  particular  state  of  facts 
shows  a  liquidated  claim  witl/ni  the  meaning  of  a  defi- 
nition of  conceded  correctness.  Thus  while  a  claim 
for  loss  against  which  an  insurance  company  has 
agreed  to  indemnify  the  owner  of  property  destroyed 
b}''  fire  is  undoubtedly  subject  to  garnishment  as  soon 
as  it  is  adjusted,^  the  courts  cannot  agree  regarding 
the  sMus  of  such  claim  prior  to  its  adjustment.  Sen- 
ator Maison,  in  Butts  v.  Collins,  said:  "But  what  are 
uncertain,  unliquidated  damages?*  They  are  such  as 
rest  in  opinion  only,  and  mu>t  be  ascertained  by  a 
jury,  their  verdict  being  regulated  by  the  peculiar 
circumstances  of  each  particular  case;  they  are  dam- 
ages which  cannot  be  ascertained  by  computation  or 
calculation,  — as,  for  instance,  damages  for  not  using  a 
farm  in  a  workmanlike  manner;  for  not  building  a 
house   in  a  good  and  sufficient  manner;   on  warranty 

>  Eastman  v.  Thayer,  GO  N.  H.  575. 

*  Boanlinaii  r.  Rou,  13  Mass.  104;  Graham  v.  Moore,  7  B.  Mou.  53;  Barker 
r.  Eaty,  ID  Vt.  131;  Fish  v.  Field,  19  Vt.  141. 

^  Boyle  V.  Franklin  Fire  Ins.  C^c,  7  Watts  &  S.  70:  Franklin  Fire  Ins.  Co. 
r.  West,  8  Watts  &  S.  350;  Gove  v.  VarroU,  58  N.  H.  78.  While  the  insurance 
corripany  retains  the  riyht  to  replace  or  rcljuild  tlie  property  de.stroyed,  in- 
stead of  paying  its  value,  the  claim  for  insurance  cannot  he  garnished,  for  it 
ia  not  due  in  money,  and  may  never  heconie  so  due.  ilarLz  v.  D.  F.  &.  M.  Ins. 
Co.,  28  Mich.  201. 

♦  13  Wead.  150, 


465       PERSONAL  PROPERTY  SUBJECT  TO  GAROTSHMENT.     §  167 

ill  the  sale  of  a  horse;  for  not  skillfully  amputating  a 
limb;  for  carelessly  upsetting  a  stage  by  which  a  bone 
is  broken;  for  unskillfully  working  raw  materials  into- 
a  fabric;  and  other  cases  of  like  character,  where  the 
amount  to  be  settled  rests  in  the  discretion,  judgment, 
or  opinion  of  the  jury."  This  definition  was  quoted 
and  approved  in  the  case  of  McKean  v.  Turner,  45 
N.  H.  204, — a  case  in  which  an  insurance  company  was. 
summoned  as  a  trustee.  In  this  case,  the  court  de- 
termined that  the  company  could  not  De  held,  because 
the  amount  of  the  claim  acjainst  it  was  ''a  matter  of. 
opinion  and  judgment,  to  be  determined,  not  by  any 
fixed  pecuniary  standard,  but  by  an  opinion  formed 
from  all  the  circumstances  of  the  case,  including  loca- 
tion, state  of  repairs,  the  quality  of  the  building,  ma- 
chinery, and  fixtures,  the  prices  of  such  property  in 
the  neighborhood,  and  generally,  all  the  circumstances, 
which  bear  on  the  question  of  value."  ^  But  perhaps 
the  better  opinion  is,  that  a  claim  against  an  insurance 
company  for  loss  occasioned  by  the  destruction  of 
property  i=?.  no  more  an  unliquidated  claim  tliaii  is  a. 
debt  due  for  goods  sold  and  delivered,  to  be  paid  for 
according  to  their  market  value."  A  liability  may  be^ 
exempt  from  garnishment,  though  not  founded  in  tort,, 
nor  for  the  recovery  of  damages,  if  it  is  unliquidated, 
and  the  parties  have  the  right  to  have  it  liquidated  by 
a  proceeding  in  chancery  before  either  becomes  liable 
at  law  to  the  other.  Thus  it  is  a  familiar  principle  of 
law  that  while  the  Imsiness  of  a  partnership  remains 
unsettled,  neither  of  the  [)artners  can  recover  of  the 
other  in  an  action  at  law  the  balance  which  he  claims 

»  Seo  M.Mcliam  r.  McCorbitt,  2  Met.  3r)2. 

'  Knox  r.  I'nitoctioii  Iiia.  Co.,  9  Conii.  430;  25  Am.  Dec.  33;  Giiard  F.  & 
M.  Ina.  Co.  v.  Field,  45  Pa.  St.  129;  3  Grant  Cas.  329. 
Vol.  I. -30 


§  UW    PERSONAL  rROPERTY   SUBJECT  TO  GARNISHMENT.       4GG 

vonlil  bo  due  him  upon  sucli  settlement.  It  follows 
that  the  creditors  oi'  one  of  tlic  partners  have  no 
rights  superior  to  tlirir  debtor,  and  tliat  as  ho  must 
await  an  aeeountinu^  before  he  can  assert  any  claim  by 
action  at  law,  so  must  they  await  such  accountinj^  be- 
fore tliey  can  proceed  by  garnishment.^ 

§  168.  Debt  Due  by  Negotiable  Note.  —  A  garnislico 
is  not,  by  means  of  tlie  garnisliment,  to  be  placed  in  a 
worse  situation  than  before,  nor  is  his  contract  to  be 
varied  or  made  more  perilous.  He  is  not  thereby  to 
be  made  answerable  to  some  person,  when  he  owes 
another.  One  who  has  executed  a  neo^otiable  note  can 
rarely  know  to  whom  he  may  be  liable  to  make  pay- 
ment. When  smiimoned  as  garnishee,  he  can  only  an- 
swer that  he  was  indebted  to  the  defendant,  but  that  he 
does  not  know  whether  his  ol)ligation  is  now  due  to  the 
defendant  or  has  been  transferred  to  another.  While 
the  present  ownership  of  the  note  remains  unknown,  it 
is  obvious  that  no  judgment  can  be  entered  against  the 
garnishee  without  exposing  him  to  a  double  account- 
ability:  1.  Upon  the  judgment;  and  2.  Upon  the  note, 
if  it  shall  prove  to  have  been  transferred.  Hence  it 
must  follow  that  negotiable  paper  ought  never  to  be 
subject  to  garnishment,  except  when  its  present  owner- 
ship can  be  shown  to  be  in  the  defendant,  and  it  is 
overdue ;  or  except  where  it  can,  as  soon  as  judgment 
is  given  against  the  garnishee,  be  deposited  in  court, 
or  with  the  garnishee,  or  in  some  manner  deprived  of 
its  negotiable  character.^  Thus  it  was  said  at  an  early 
day   in   New   Hampshire,   that  "  it  has    always  been 

'  Burnhain  »•.  Hopkinson,  17  N.  II.  259;  Driscoll  v.  Hoyt,  11  Gray,  404; 
Sheeily  v.  Second  Nat.  Bauk,  G2  Mo.  17. 

''  Clough  V.  Buck,  6  Neb.  343;  King  v.  Vance,  46  LuL  240;  Huot  v.  Ely,  17 
Fla.  775, 


467       PERSOXAL  PROPERTY  SUBJECT  TO  GARXISHMEXT'.     §  168 

considered  as  settled  in  this  state  that  a  trustee  who 
has  given  a  negotiable  note  to  the  principal  cannot  be 
charged  as  a  trustee  on  account  of  such  note.  The 
reason  of  this  rule  is  founded  upon  the  negotiable 
quality  of  the  paper.  If  the  trustee  could  be  charged 
in  such  a  case,  then  it  might  happen  that  either  a  bona 
fide  purchaser  of  the  note  must  lose  the  amount  of  it, 
or  the  maker,  without  any  fault  on  his  part,  be  com- 
pelled to  pay  it  twice.  To  avoid  such  a  dilemma,  the 
rule  was  established."^  But  since  this  decision  was 
pronounced,  the  law  of  the  state  has  been  changed  by 
statute,  making  negotiable  paper  subject  to  garnish- 
ment, and  protecting  the  maker  from  the  claim  of  any 
indorsee  whose  title  was  acquired  subsequently  to  the 
service  of  the  trustee  process.-  In  Vermont  it  was 
decided,  upon  principle,  that  the  maker  of  a  negotiable 
note  could  not  be  held,  unless  it  could  be  shown  that 
the  note  had  not  been  transferred,  and  that  it  could  be 
prevented  from  continuing  its  negotiable  character.^ 
The  legislature  then  made  all  negotiable  paper  subject 
to  garnishment,  unless  notice  of  its  assignment  had  been 
given  to  the  maker.*  In  Pennsylvania,  it  seems  in  the 
first  instance  to  have  been  decided  that  neirotiable 
notes  could  not  be  readied  by  garnishment.^  Subse- 
quently, the  courts  held  that  such  notes  were  liable; 
that  the  judgment  against  the  garnishee  could  not 
prejudice    an  assignee  without   notice;   and    that  the 

>  Stone  r.  Dean,  5  N.  H.  603. 

»  Auioskeag  M.  Co.  v.  Gihbs,  8  Fost.  316. 

'  Ilutcliins  V.  Evans,  13  Vt.  541;  Ilinadale  v.  SaflFord,  11  Vt.  309. 

♦Kimball  v.  Gay,  10  Vt.  131;  Cliaao  v.  Haughton,  10  Vt.  51)4;  Barney  v. 
Douglarts,  ID  Vt.  :}8;  Pock  v.  Walton,  25  Vt.  33;  Emcnsou  v.  Partridge,  27  Vt. 
8;  02  Am.  Dec.  617;  Williama  v.  Shepherd,  33  Vt.  164;  Seward  v.  Garlin,  33 
Vt.  58.3. 

'•'  Ludlow  V.  Bingham,  4  Dall.  47. 


§10S    rERSOXAL  PROrERTY   SURTECT  TO  (lARNTSHMENT.       408 

garnishco,  lor  his  prott-'ction,  i-ouKl  ri.'i|uii-o  the  notes 
to  he  placed  in  the  custody  of  the  eouit.^  In  Soutli 
Carohna,-  Louisiana."'  and  Texas,'  the  maker  of  ncni- 
tiabU^  notes  can  he  charged  as  a  ii^arnishec  only  when 
it  can  he  sliown  that  they  are  still  in  the  possession  of 
the  defendant.  In  Indiana/'  ]Mielno-an,°  Minnesota/ 
and  Wisconsin^  the  rule  is  in  substantial  conformity 
with  that  adopted  in  the  states  last  named.  In  Iowa  the 
statute  provides  that  "  the  u^arnislieo  sliall  not  be  made 
liable  on  a  debt  due  by  negotiable  or  assignable  paper, 
unless  such  paper  is  delivered,  or  the  garnishee  com- 
pletely exonerated  or  indemnified  from  all  liability 
thereon,  after  he  may  have  satisfied  the  judgment.*^ 
In  California,  the  maker  of  a  negotiable  note,"^  or  of  a 
negotiable  certificate  of  deposit,^^  cannot  be  garnished 
before  its  maturity  so  as  to  impair  the  rights  of  a  sub- 
sequent bona  fide  holder.       In  Georgia,'"  Kentucky,'^ 

»  Kieflfer  v.  Ekler,  18  Pa.  St.  388;  Hill  v.  Kroft,  29  Pa.  St.  18G. 

s  Gaflfney  v.  Bradford,  2  Bail.  441 ;  McBride  v.  Floyd,  2  Bail.  209. 

»  Sheetz  v.  Culver,  14  La.  449;  32  Ain.  Dec.  593;  Kimball  v.  Plant,  14  La. 
511;  Erwin  i\  C.  &  R.  R.  Bauk,  3  La.  Anu.  ISO;  Rosa  v.  Savoy,  5  La.  Ann. 
162;  Harris  i:  Bauk  of  ^lobile,  5  La.  Ann.  538;  Deuham  r.  Pogue,  20  La. 
Ann.   1 95. 

*  Inglehart  r.  Moore,  21  Tex.  501;  Price  v.  Brady,  21  Tex.  G14;  Bassett  w. 
Garthwaite,  22  Tex.  230;  73  Am.  Dec.  257;  Kupp  v.  Teel,  33  Tex.  81;  Wy- 
brants  v.  Rice,  3  Tex.  458. 

'  Smith  V.  Blatchford,  2  Ind.  184;  52  Am.  Dec.  504;  Junction  R.  R.  Co.  v. 
Cleneay,  13  Ind.  IGl;  Stetson  t>.  Cleneay,  14  Ind.  453;  Cadwaladcr  v.  Hartley, 
17  Ind.  520;  Cleneay  v.  J.  R.  R.  Co.  26  Ind.  375. 
Littlefield  r.  Hodf^e,  G  Mich.  326. 

'  Hubbard  r.  WilliauiS,  1  Minn.  54;  55  Am.  Dec.  6G. 

"Carson  r.  Allen,  2  Chand.  123;  Davis  v.  Pawlette,  3  Wis.  300;  G2  iVm. 
Dec.  690;  Mason  v.  Noonan,  7  Wis.  609. 

»  Huglies  V.  Monty,  24  Iowa,  499;  Wilson  v.  Albright,  2  G.  Greene,  125; 
County  Comm'ra  r.  Fox,  1  Morris,  48;  Yocum  v.  White,  3G  Iowa,  288 

"  Gregory  v.  Higgins,  10  Cal.  339. 

"  McMillan  v.  Richanls,  9  Cal.  3G5;  70  Am.  Dec.  C55. 

>-  Burton  r.  Wynne,  55  Ga.  GI5;  Mina  v.  West,  38  Ga.  18,  explaining  King 
r.  Carhart,  18  Ga.  650. 

»  Greer  v.  Powell,  1  Bush,  489. 


469       PERSONAL  PROPERTY  SUBJECT  TO  GARXISKMEXT.     §  16S 

Massachusetts,^  and  Mississippi,-  the  maker  of  nego- 
tiable paper  is  protected  from  the  possibiUty  of  loss  by 
garnishment. 

In  Maryland,  the  maker  of  negotiable  notes  was 
garnished.  They,  it  clearly  appeared,  were  transferred 
before  their  maturity;  but  the  evidence  was  conflicting 
with  respect  to  the  question  whether  such  transfer 
was  before  or  after  the  garnisliment.  The  garnishee 
asked  for  an  instruction  to  the  jury,  to  the  effect 
that  if  the  transfer  was  made  prior  to  the  maturity  of 
the  notes  to  an  indorsee,  bona  fide,  for  value,  of  which 
transfer  the  garnishee  had  no  notice,  then  that  the  ver- 
dict must  be  in  his  favor.  This  instruction  w-as  refused, 
and  on  account  of  such  refusal  the  judgment  against 
the  garnishee  was  reversed.  "  The  difficulty  of  sub- 
jecting credits  of  that  kind  to  the  process  of  garnish- 
ment is  to  be  found,  not  only  in  the  nature  and 
character  of  negotiable  paper,  but  also  in  placing  the 
garnishee  in  a  worse  condition  than  he  otherwise  would 
be,  and  subjecting  him  to  the  danger  of  having  to  pay 
the  same  debt  twice  over;  for  if  a  judgment  of  con- 
demnation be  recovered  against  him,  its  payment  would 
not  serve  as  a  defense  against  a  suit  upon  the  note  by 
a  bona  fi/h  indorsee  for  value,  who  received  it  before 
maturity  without  notice  of  the  attachment.  The  rights 
of  the  indorsee  could  be  in  no  manner  affected  by  the 
attachment  proceeding,  to  which  he  is  not  a  party, 
and  which  as  to  him  is  res  inter  alios.  On  the  other 
hand,  if  it  could  be  maintained  that  in  such  case 
tlic  judgment  of  condemnation  and  its  payment  by  the 
garnishee  will  protect  him  against  the  claim   of  the 

*  Eunuen  v.  Ilcaly,  2  Mtuw.  32;  Purry  v.  Coates,  8  Mass.  537;  Wood  *>.  Bod- 
well,  10  Pick.  208;  Maine  F.  lag.  Co.  t-.  Weeka,  7  Maaa.  438. 

*  McNeil  V.  Roacbe,  4d  Mim.  436. 


g  ICS    PERSONAL  TROrERTY  SUB.TECT  TO  OAUNISHMENT.       470 

iiulorsoo.  Nvhii'li  wtuild   l»o  contrary  to  stuiiul  priiiei])los, 
siu'h  a  (li)ctrim'  would  di'stroy  lln'  iu'L;;()tial)ility  of  ;dl 
promissory  notrs.  and   intorfore  injudiciously  with  the 
dailv   l)usini>ss  and   transactions  of  men  dcalinuf  with 
conuncrcial  jKipor."'     In  Oliio,  all  debts,  whether  evi- 
denced hy  nei^otiahle  instruments  or  not,  arc  by  statute 
declared  to  bo  subject  to  j^arnislinient.      The  construc- 
tion given  to  this  statute,  however,  docs  not  impair  the 
negotiability  of  such  debts.     "No  judgment  charging 
the   garnishee  can  be  rendered    in   any  case  of  debt 
not  due  untd   after  it  becomes  due,  and  not  then  as 
to  negotiable  paper,  if  it  appears  that  the  garnishee 
is  liable    to   a    bona  fide   holder."     The   garnishee   is 
entitled  to  a  day  in  court.     The  garnishment  entitles 
the  judgment  creditor,  upon  the  maturity  of  the  debt, 
to  bring  an  action  against  the  garnishee.     This  action 
the  garnishee  may  successfull}'  defend  by  showing  that, 
before  its  maturity,  the  ncG^otiable  debt  was  transferred 
to  an  indorsee,  bona  fide,  for  value,  and  without  notice 
of  the  garnishment;'^  and  it  is  not  material  whether 
the  garnishee  had  notice  of  the  transfer  or  not  at  the 
time  of  garnishment.^     The  result  of  the  decisions  in 
Connecticut  and  North  Carolina  is  substantially  iden- 
tical with  that  of  the  decisions  in  Ohio;  viz.,  the  right 
of  garnishment  does  not  affect  the  negotiability  of  the 
debt,  nor  impair  the  rights  of  a  bona  fide  holder  thereof 
before  maturity;  and  in  the  last-named  state  the  gar- 
nishee has  the  right  to  insist  upon  the  production  and 
surrender  of  the  note  before  judgment  against  him  as 

>  Crnett  r.  Jenkins,  53  Md.  223,  cxitlaining  and  overruling  Stewart  v.  West, 
1  Har.  &  J.  53G,  and  Somervillo  v.  Brown.  5  Gill,  339,  and  Brown  v.  Somer- 
ville,  8  Md.  444. 

»  Secor  r.  White,  39  Ohio  St.  218. 

»  Kuiaely  v.  Evans.  34  Ohio  St.  158. 


471       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  168 

garnishee,  or  may  require  indemnity  as  in  case  of  a 
lost  note,^ 

In  Alabama,  the  question  lias  been  carefully  consid- 
ered in  a  case  wherein  it  appeared  that  the  transfer  of 
negotiable  paper  had  been  made  after  the  garnishment 
of  the  maker  but  before  the  maturity  of  the  note.     The 
court  said:  "A  judgment  cannot  and  ought  not  to  be 
rendered  against  a  garnishee  unless  it  will  shield  him 
from  any  demand  of  the  judgment  debtor,  or  those 
claiming  under  him.     The  judgment   cannot   protect 
him  against  a  right  and  title  which  is  independent  of 
and  paramount  to  that  of  the  judgment  debtor, — a  right 
and  title  which  the  law  enables  the  debtor  to  confer  in 
pursuance  of  a  well-defined  public  policy,  in  opposition 
to  its  own  maxims,  in  reference  to  any  and  all  other 
species  of  property.     The  very  nature,  import,  and  ob- 
ligation of  negotiable  paper  is  not  to  pay  to  a  particu- 
lar person,  but  to  pay  whoever  may  be  its  boiia  fide 
holder  at  maturity,  and  to  pay  him  absolutely  and  at 
all  events.     In  its  structure  and  form,  and  the  charac- 
ter of  its  obligation,  it  is  essentially  distinguishable 
from  a  promise  to  pay  a  particular  person  a  particular 
sum,  wliicli  is  so  hemmed  and   circumscribed   that  it 
cannot  pass  without  putting  to  inquiry  all  who  touch 
and  deal  with  it.     The  principle  is  therefore  well  set- 
tled, that  if  a  garnishment  will  reach  negotiable  paper 
before  the  rendition  of  judgment  against  the  garnishe(!S, 
it  nmst  be  affirmatively  shown  that  the  nt)te  had  b<^- 
comc  due,  and  was  still  the  property  of  the  payee  of 
of  the  holder,  as  whose  property  the  garnishment  is 
intended  to  condemn  it.'"'     Nor  does  it  seem  to  be  es- 

» .Shuler  r.  Bryson,  65  N.  C.  201;  Myers  v.  Bccman,  9  Ircil.  llC);  Oniion.l  r. 
Moye,  11  Ircd.  r)04;  Euoa  v.  Tuttle,  .3  Conn.  27;  Culver  r.  PariHli,  21  Comi.  -108. 
»  Maybcrry  r.  Morris,  02  Ala.  118;  Mills  r.  Stewart,  12  Ala.  'JO. 


§  16S     PERSONAL  rROPERTY  SUBJECT  TO  GARNISHMENT.      472 

sential  that  the  transfer  of  negotiable  paper  be  in  all 
respects  a  complete  legal  transfer,  in  the  technical  sense, 
to  entitle  the  hokler  to  protection  against  garnishment. 
AI.  made  his  negotiable  note  in  favor  of  S.,  who  in- 
dorsed it  in  blank,  and  delivered  it  to  a  national  bank 
as  collateral  security  for  a  loan.  While  the  note  re- 
mained in  the  bank,  O.  &  C.  purchased  it  of  S.,  who 
gave  them  an  order  on  the  bank  therefor.  The  bank, 
having  been  paid  the  amount  of  its  debt,  made  no  claim 
to  the  note,  but  declined  to  deliver  it,  because  of  a 
garnishment  served  prior  to  the  sale  of  the  note  to  O. 
&  C,  but  of  which  they  had  no  notice  at  the  time  of 
such  sale.  It  was  insisted  that  O.  &  C.  were  not  en- 
titled to  protection  as  bona  fide  indorsees  or  holders  of 
the  note,  because  it  had  not  been  delivered  to  them. 
The  court  held  that  as  the  note  was  indorsed  in  blank, 
and  was  therefore  transferable  by  delivery,  a  direction 
given  to  the  bank  to  deliver  it  to  the  purchasers  was 
sufficient  as  a  constructive  delivery.^  So  in  South 
Carolina  the  depositing  of  negotiable  bills  in  the  mails 
was  adjudged  to  be  a  sufficient  delivery  thereof  to  give 
the  persons  to  whom  they  were  mailed  precedence 
over  an  attachment  levied  after  such  mailing,  but  before 
the  notes  reached  their  destination.^ 

A  note  is  not  negotiable  unless  payable  in  money. 
Hence  the  maker  of  a  note  payable  in  bank  notes  or 
current  bills  may  be  held  as  a  garnishee.^  If  the 
maker  of  negotiable  paper  is  summoned  as  a  garnishee, 
he  must  make  the  defense  that  the  note  is  transferable, 

»  Howe  V.  Ould,  28  Gratt.  1. 

'  Mitchell  V.  Byrne,  6  Rich.  171;  see  also  Lysaght  v.  Bryant,  G7  Eng.  Com. 
L.  46. 

»  Piatt  I'.  State  Bank,  17  Wis.  222;  Ford  v.  Mitchell,  15  Wis.  .304;  Kirkpat- 
rick  V.  McCuUough,  3  Humph.  171;  .39  Am.  Dec.  158;  Whitemau  v.  Childress, 
6  Humph.  303;  Fay  v.  Rosseau,  3  McLean,  106;  Lrvine  v.  Lowny,  14  Pet.  293. 


473       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  16S 

and  that  he  does  not  know  who  the  owner  is,  or  who 
he  ma}'  be,  when  payment  becomes  due.  If  he  ne- 
glects to  avail  himself  of  this  defense,  and  permits 
judo'ment  to  be  entered  against  him,  he  cannot,  on  that 
account,  resist  an  action  brought  against  him  by  the 
assignee  of  the  note.^  In  Tennessee  it  was  held  that 
a  debt  due  by  a  negotiable  note  may  be  attached.'^  The 
practical  result  of  this  decision  has  been  obviated  by 
subsequent  decisions,  declaring  that  if  the  garnishee 
answers  that  he  executed  a  negotiable  note  to  the  de- 
fendant, but  does  not  know  who  now  holds  the  note, 
nor  to  whom  the  debt  is  now  owing,  no  judgment  can 
be  entered  against  him.^  In  Missouri,  debts  due  by 
negotiable  notes  may  be  attached.*  The  garnishee 
may,  however,  "protect  himself  by  compelhng  the 
attachment  debtor  to  produce  the  note  in  controversy, 
or  show  a  sale  and  transfer,  if  one  has  been  had."  ^  In 
New  Jersey,  negotiable  debts  are  subject  to  garnish- 
ment, both  before  and  after  their  maturity.  If  the 
debt  is  claimed  by  an  attaching  creditor  and  by  an 
indorsee,  bona  fide,  before  maturity,  the  debtor  may 
compel  these  adverse  claimants  to  interplead,  and  to 
determine  to  which  he  is  answerable.  Up  to  the  pres- 
ent time,  the  courts  of  that  state  seem  to  have  been 
successful    in    avoiding   the   necessity  of  determining 

'  Shuler  v.  Bryson,  65  N.  C.  201;  Myers  v.  Beeman,  9  IretL  IIG;  Ormoncl  v. 
Moye,  11  Ircd.  504. 

■^  Huff  V.  Mills,  7  Yerg.  42. 

*  Turner  v.  Armstrong,  9  Yerg.  412;  Moore  v.  Greene,  4  Humph.  299; 
Daniel  v.  Rawling.^,  G  Humph.  403.  See  also  Yarborough  v.  Thompson,  3 
Smeilus  &  M.  291 ;  Thompson  v.  Shcll)y,  3  Smedes  &  M.  296. 

♦Quarlea  v.  Porter,  12  Mo.  7G;  Colcord  v.  Daggett,  18  Mo.  557;  Scott  v. 
Hill,  3  Mo.  88;  22  Am.  Dec.  4G2;  St.  Louia  Ins.  Co.  v.  Cohen,  9  Mo.  421; 
Dickey  v.  Fox,  24  Mo.  217;  Waldcn  v.  Valiant,  15  Mo.  409;  Fnnkhouser  v. 
How,  24  Mo.  44. 

'''  Murphy  v.  Wilson,  45  Mo.  427. 


%  ICS     rUtSONWL  rUOPERTY  SUBJECT  TO  OARNISIIMEXT.       471 

which  o\  tlu'st>  ailviTso  claimants  is  cntltlt'd  to  prcfer- 
enoo.'  The  law  rospecting  the  jj^arnislunciit  of  iu>n^o- 
tiiiblo  paprr  lias  boon  thus  stated  iu  a  recent  case  by 
the  court  nf  appeals  of  New  York:  "It  is  f^onerally 
the  law  ill  this  countiy,  under  statutes  like  those  which 
existed  iu  this  sti\te,  that  a  debt  evidciu-ed  by  a  nego- 
tiable security  can  be  attached,  and  the  following  rules 
ma}'  be  di'duced  from  the  adjudged  cases.  While  the 
negotiable  security  is  held  by  the  attachment  debtor,  it 
may  be  attached  by  the  service  of  an  attachment  upon 
the  maker,  provided  the  negotiable  security  is  past  due. 
If  the  Security  be  not  past  due  at  the  time  the  attach- 
ment served,  but  remains  in  the  hands  of  the  attach- 
ment debtt)r  until  it  becomes  due,  then  the  attachment 
is  effectual.  Where  a  debt  evidenced  by  a  negotiable 
security  is  thus  attached,  the  attachment  is  effectual 
against  everybody  except  a  honafiJe  taker  of  the  secu- 
rity after  the  attachment.  Tlie  care  and  purpose  of 
the  courts  in  such  cases  is  to  protect  the  maker  of  the 
security  against  double  payment,  and  when  that  can  be 
accomplished  the  attachment  can  be  made  effective. 
If  the  security  is  not  due,  there  must  be  proof  that  it 
was  in  tlic  hands  of  the  attachment  debtor  when  the 
attachment  was  served,  and  in  the  absence  of  proof, 
that  will  not  be  presumed;  in  other  words,  it  must  bo 
shown  that  it  was  in  such  a  condition  as  to  be  liable  to 
attachment.  It  has  generally  been  understood  to  be 
the  law  in  this  state  that  a  debt  evidenced  by  a  nego- 
tiable security,  whether  due  or  not,  so  long  as  it  is  in 
the  hands  of  the  attacliment  debtor,  can  be  attached  by 
ser\'ing  the  attachment  on  the  maker  of  the  security. 
The   attachment    may  be    defeated    by  a   subseq^uent 

» liriant  r.  Kced.  14  N.  J.  i:<i.  271. 


475       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  168 

transfer  of  the  security  to  a  bona  fide  taker  for  value, 
who  is  ill  a  position  to  enforce  it  against  the  maker. 
But  before  the  debt  can  be  enforced  against  the  maker 
under  the  attachment,  the  sheriff  must  obtain  posses- 
sion of  the  security,  so  that  upon  the  trial  he  can  sur- 
render it  to  the  maker,  or  he  must  show  that  it  has 
already  got  into  the  hands  of  the  maker,  or  that  for 
some  other  reason  it  could  not  be  enforced  against  the 
maker  by  any  other  person."^     In  this  case  it  appeared 
that  a  railroad  corporation,  having  a  deposit  with  the 
bank,  drew  its  checlc  therefor  payable  to  the  order  of 
R.,  as  its  assistant  treasurer.     The  check  was  certified 
by  the  bank  to  be  good,  delivered  by  it  to   R.,  and 
charged  against   the  railroad  company.     Three   days 
later  the  bank  was  garnished  under   an    attachment 
against  the  company.     After  being  by  the  bank  in- 
formed of  this  garnishment,  R.  opened  an  individual 
account  with  the  bank,  upon  which  he  deposited  the 
clieck  in  question,  it  having  remained  in  his  possession, 
and  the  property  of  the  railway  company.     The  pro- 
ceeds of  the  check  were  subsequently  drawn  out  of  the 
bank  l)y  R.,  and  applied  to  the  payment  of  other  liabil- 
ities of  the  railway  company.     As  the  bank  had  reason 
to  believe,  at  the  time  it  received  the  deposit  in  the 
name  of  R.,  that  the  check  deposited  was  the  property 
of  the  railway  comi)any,  it  was  held  to  be  lial)lc  for  the 
amount  thereof  to  the  attaching  creditor.     If  money 
i.s  deposited  in  a  savings  bank,  and  a  pass-book  isssued 
to    the    depositor,  and  such   book    is  transferable    by 
indorsemr'nt,  it  is  nevertheless  not  to  be  regarded  as  a 
negotiable  instrument  for  all  jiurposcs.      The  bank  may 

«  BilU  V.  N.  r.  Bank  of  N.  Y.,  9S  N.  V.  M'X 


§  100     ^ERSON.^X  PROrERTY  SUBJECT  TO  GARNISHMENT.       476 

l)o  i^anii^ln  tl  iiiulcr  an  oxocution  or  attadimcnt  against 
the  clrposilor.' 

^  169.  Debts  Due  from  Two  or  More  Persons,  or 
to  Two  or  More  Persons.  —  The  debt  sought  to  be 
subjected  to  execution  may  be  owing  from  two  or 
more  persons.  In  that  event,  all  the  debtors  ought 
to  be  summoned  as  garnishees;  for  although  the  debt 
is  due  from  them  severally,  and  either  of  them  is  liable 
to  an  action  therefor  without  joining  the  others,  yet  if 
one  be  omitted  from  tlic  garnishment,  ho  may,  if  he  sees 
proper,  pay  the  debt  to  the  creditor,  and  thus  defeat  the 
garnishment.  The  plaintiff  who  undertakes  to  reach  a 
debt  by  garnishment  or  by  proceedings  supplemental 
to  execution,  ought  to  be  entitled  to  enforce  the  debt 
against  the  person  from  whom  it  is  owing,  in  the  same 
manner  and  under  the  same  circumstances  as  it  could, 
but  for  the  garnishment,  have  been  enforced  by  the 
original  creditor.  If  the  debt  was  due  from  two  or 
more  persons  jointly,  the  original  creditor  could  enforce 
it  only  by  an  action  against  all  the  debtors ;  but  if  it 
was  due  from  two  or  more,  jointly  and  severally,  then 
it  could  be  enforced  against  all  or  against  one,  as  the 
creditor  might  choose  to  proceed.  These  principles, 
though  usually  ap[)lied  to  proceedings  by  garnishment, 
have  not  been  universally  recognized  as  applicable  to 
those  proceedings.  With  respect  to  proceedings  against 
j(.)lnt  debtors,  it  is  very  generally  conceded  that  all  must 
be  summoned.^     In  Massachusetts,  the  non-joinder  of  a 

»  Nichols  r.  Schoficld,  2  R.  I.  123;  Witte  v.  Vincent,  43  Cul.  .32.1.  8oc  State 
V.  Judge  Co.  Ct.,  11  Wis.  50,  Beck  v.  Cole,  IG  Wis.  9.j,  ami  Smith  v.  Picket,  7 
Ga.  104,  50  Am.  Dec.  383,  for  diacusaion  of  effect  of  instruments  made  nego- 
tiable by  agreement. 

»Rix  V.  Elliott,  1  N.  H.  184;  Hudson  v.  Hunt,  5  N.  H.  5.38;  .lewett  v. 
Bacon,  6  Mass.  GO;  Atkina  v.  Prescott,  10  N.  H.  120;  Ladd  v.  Baker,  G  Fost. 


477       PERSONAL  PROPERTY  SUBJECT  TO  GARXISHMEIsT?.     §169 

co-debtor  must  be  objected  to  by  a  plea  in  abatement;^ 
but  this  rule  seeius  not  to  be  applied  to  proceedings  by 
garnishment  in  most  of  the  other  states.  If  the  debt 
is  due  from  a  partnership  composed  of  resident  and 
non-resident  members,  it  may  be  garnished  in  Massa- 
chusetts and  Vermont  by  summoning  the  resident 
members,-  except  where  it  was  contracted  in  a  foreign 
land  by  a  member  of  the  firm  there  residing,  and  carry- 
ing on  business  in  behalf  of  the  firra.^  This  exception 
was  made  because  it  would  be  impossible  for  the  resi- 
dent members  to  be  constantly  informed  with  regard 
to  indebtedness  alleged  to  have  been  created  by  their 
copartners  in  the  foreign  country. 

The  liability  of  partners,  unless  modified  by  stat- 
ute, is  unquestionably  joint,  and  not  joint  and  several. 
The  creditors  of  the  partnership  have  no  right  to  pro- 
ceed against  any  of  the  partners  severally  by  action. 
Neither  have  the  creditors  of  a  creditor  of  a  partner- 
ship the  right  to  proceed  by  garnishment  against  one 
only  of  the  partners  as  if  the  debt  were  his  individual 
debt.  Hence  if  garnishment  be  sued  out  in  two  dif- 
ferent actions,  one  against  A  and  the  other  against  A 
and  B  as  partners,  and  the  object  bo  to  reach  a  debt 
due  from  the  firm,  the  latter  garnishment  must  be 
awarded  precedence  over  the  former,  though  subse- 
quently served.''  If  the  garnisliment  is  directed 
against  one  person,  and  lie  answers  that  he  pcrson- 

76;  Pettes  v.  Spalding,  21  Vt.  CO;  Nash  v.  Brophy,  13  Met.  47G;  Wilson  v.  Al- 
bright, 2  G.  Greene,  125;  Warren  v.  Perkins,  8  Cash.  518;  Hoskins  v.  Johnson, 
24  Ga.  625;  Elliott  v.  Smith,  2  Cranch  C.  C.  543;  Fairchild  v.  Lampson,  37  Vt. 
407. 

*  Hoyt  r.  Rr)1)in8on,  10  Gray,  371;  Sabin  v.  Cooper,  15  Gray,  532. 
»  Parker  r.  Danforth,  10  Ma«8.  299;  Peck  v.  Barnuin.  24  Vt.  75. 

»  Kidiler  r.  Packard,  13  Mass.  80. 

*  Hoskina  r.  Johnson,  24  Ga.  628. 


§  1G9     TERSON^VL  TROrERTY  SUBJECT  TO  GARNISHMENT.       478 

ally  owes  tlie  juilginont  debtor  nothing,  but  admits 
the  liability  of  hinisoir  and  another  as  niombers  of  a 
firm,  ho   is  generally   entitled    to  be  discharged.^     If 
the   garniishnient    is    directed   against  the   firm,   there 
may  be  circumstances  which  will  authorize  the  court 
to  dispense  with  the  service  of  process  on  some  of  its 
members,  as  where  it  is  impossible  so  to  do  because  of 
his  being  beyond  the  jurisdicticm  of  the  court.     Thus 
where  garnishment  was  directed  to  only  one  member 
of  a  firm,  the  court  said:  "Had  the  partner  been  in- 
cluded in  the  writ,  whether  service  was  on  him  or  not, 
the  firm  would  have  been  holden;  but  the  trustee  would 
not  have  been  permitted  to  disclose  till  he  could  have 
informed   his  jiartner  of  the  pendency  of  the  trustee 
process.     If  the  partner  had  not  paid  the  claim  to  the 
principal  debtor,  then  he  could  not  do  it  after  such  no- 
tice, except  in  his  own  wrong,  and  the  trustee  might 
well  disclose  as  to  the  liability  of  the  firm.     Here  no 
claim  is  made  against  the  firm,  and  the  trustee  is  in  no 
manner  liable."'^ 

Where  a  debt  is  due  from  two  or  more,  jointly  and 
severally,  the  creditor  may  unquestionably  sue  all  of 
the  debtors  jointl}-,  or  each  of  them  separately.  If  a 
creditor  of  the  creditor  seeks  to  levy  upon  and  enforce 
the  same  liability,  he  ought  to  be  entitled  to  the  like 
option  of  treating  the  debt  as  either  joint  or  several, 
and  therefore  be  privileged,  in  his  discretion,  to  garnish 
either  all  or  any  of  those  debtors.  It  has  neverthe- 
less been  held  that  he  must  summon  all  the  debtors.^ 

>  Wellover  v.  Soule,  30  Mich.  4S1;  Hirth  v.  Tfeifle,  42  Mich  31;  Warner  v. 
Perkins,  8  Cush.  518;  Pettes  v.  Spalding,  21  Vt.  GO;  Atkins  ■}.  Prescott,  10 
N.  H.  120. 

^  Atkins  r.  Prescott,  10  N.  H.  123. 

»  Trea.lwell  v.  Brr.wn,  41  N.  H.  12;  Barker  v.  Garland,  22  N.  H.  103.  For 
exception  to  this  rule  in  this  state,  eeo  Ladd  v.  Baker,  G  Fost.  70. 


479       TERSOXAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  1G9 

But  the  decisions  to  this  effect  must,  upon  principle,  be 
regarded  as  unsound.     A  person  jointly  and  severally 
liable  with   others  may  be  jointly  or  severally  sued. 
His  obligation  is,  therefore,  not  changed,  nor  in  any 
respect  made  more  onerous,  by  charging  him  jointly  or 
severally  as  a  garnishee.     Plence,  where,  by  statute, 
partners  could  be  severally  sued  on  partnership  obliga- 
tions, it  was  determined  that  either  of  them  could  be 
garnished  for  a  debt  due  from  the  firm.^     Whenever  a 
cause  of  action  of  a  personal  nature  accrues  to  two  or 
more  persons,  whether  as  joint  tenants,  copartners,  ten- 
ants in  common,  or  partners,  it  cannot,  against  the  ob- 
jection of  the  defendant,  be  asserted  otherwise  than  by 
an  action  in  which  all  the  co-owners  are  joined.^     In 
other  words,  a  single  demand  cannot,  without  the  as- 
sent of  the  person  from  whom  it  is  owing,  be  split  into 
a  separate  demand  in  favor  of  each  of  the  obligees.     If 
this  cannot  be  done  in  favor  of  the  obligees,  it  would 
seem  to  be  too  clear  for  argument  that  it  cannot  be 
done  in  favor  of  a  person  whose  rights  are  derived 
solely  from  one  of  the  obligees.     Upon  what  legal  prin- 
ciple can  it  be  affirmed  that  the  creditor's  creditor  can, 
by  garnishment,  acquire  a  right  or  a  remedy  to  which 
the  creditor  never  was  entitled,  and  which  he  was  in- 
competent  to   transfer   by  any   voluntary  act?     The 
garnishment  might  well  be  allowed  to  subrogate  the 
creditor's  creditor  to  all   the  rights  and  remedies  of 
the  creditor.     This  would  entitle  him  to  take  the  place 
of  one  of  the  original  obligees,  and,  in  connection  with 
the  co-obligees,  to  assert  the  entire  demand  against  the 
obligor.     But  why  should  the  debtor  be  subjected  to 
two  recoveries,  —  one  by  the  creditor  whose  credit  has 

>  Travia  r.  Tartt,  8  Ala.  574;  Speak  v.  Kin.scy,  17  Tux.  301. 
'  Freeiuau  ou  Coteaaacy  aud  Partitiou,  c.  15. 


§  IGi)     PERSONAL  PROrERTY  SUB.IECT  TO  GARNISHMENT.       4S0 

not  boon  Liainlslioil,  and  the  otlior  by  judgment  in  the 
garnishment  proceedings?  Furtliornioro,  how  can  the 
respective  moieties  of  the  creditors  be  ascertained  and 
fixed,  in  a  proceeding  to  which  one  of  them  is  not  a 
party?  But  it  must  be  conceded  that,  in  a  majority  of 
the  cases  in  which  this  question  has  been  involved,  it 
has  been  determined  in  opposition  to  principles  which 
appear  ti)  us  as  axiomatic.  Thus  in  Maine,^  Massachu- 
setts," and  Missouri,^  it  has  been  held  that  a  person  can 
be  held  as  garnishee  upon  an  obligation  due  to  the  de- 
fendant and  a  person  not  a  party  to  the  suit;  that  the 
debt  w^ill  be  severed  and  judgment  given  for  such  part 
as  the  defendant  would  be  entitled  to  receive  upon  the 
collection  and  division  of  the  whole  debt.  In  New 
Hampshire,  the  rule  is  clearly  in  accordance  with  what 
we  deem  the  true  principle,  and  protects  the  garnishee 
from  the  splitting  of  demands  against  him.*  With 
respect  to  debts  due  to  a  partnership,  the  majority  of 
the  decisions  deny  the  liability  of  the  garnishee,  except 
in  an  action  to  which  all  the  partners  are  parties  de- 
fendant.^ These  decisions  do  not  proceed  upon  the 
principles  for  which  we  have  here  contended,  but  on 
the  more  questionable  ground  that,  until  the  final 
adjustment  of  the  partnership  business,  it  cannot  be 
known  whether  the   partner,   as  whose  creditor   the 

'  Whitney  v.  Monroe,  19  Me.  42;  36  Am.  Dec.  733. 

'  Thorndike  v.  De  Wolf,  G  Pick.  120.  It  may  be  that  this  case  is  overruled 
in  Hawes  v.  \Valtham,  18  Pick.  451,  the  statement  of  fact3  nut  being  sufficiently 
clear,  in  the  last-named  case,  to  enable  us  to  determine  its  precise  import, 

»  Miller  r.  Richardson,  1  Mo.  310. 

*  French  f.  Rogers,  ION.  H.  177;  Hansom  n  Davis,  19  N.  H.  133. 

*  Winston  v.  Ewing,  1  Ala.  129;  Johnson  v.  King.  G  Humph.  233;  Branch  v. 
Adam,  51  Ca.  113;  Towner.  Leach,  32  Vt.  747;  Fish  v.  Hcrrick,  G  Mass.  271; 
Mobley  f.  Lonbat,  7  How.  (Miss.)  318;  Uphan  t>.  Naylor,  9  Mass.  490;  Smith 
r.  McMickeu,  3  La.  Ann.  319;  Church  v.  Knox,  2  Conn.  514;  Lyndon  v.  Gor- 
ham,  1  Call.  3G7;  Kingsley  v.  Missouri  F.  Ins.  Co.,  14  Mo.  407;  Bulliuch  v. 
Wincbeoback,  3  Allen,  IGl;  Williama  v.  Gage,  49  Miss.  777. 


481     PERSONAL  PROPERTY  SUBJECT  TO  GAENISmiEXT.     §  lG9a 

garnishee  is  suramoned,  is  entitled  to  any  portion  of 
the  debt.  In  Maryland/  Pennsylvania,^  and  South 
Carolina^  the  interest  of  a  partner  in  a  debt  due  to 
the  firm  can  be  reached  by  garnishment. 

§  169  a.  Debts  Due  to  the  Judgment  Debtors, 
Jointly  or  Severally.  —  One  of  the  consequences  of  a 
judgment  against  two  or  more  persons  is  that  the  prop- 
erty of  all  or  either  may  be  levied  upon  and  sold  for  the 
purpose  of  satisfying  the  judgment.  Satisfaction  need 
not  be  sought  exclusively  out  of  joint  propert}^  nor  ex- 
clusively out  of  separate  property;  but  both  joint  and 
separate  property  may  doubtless  be  seized  at  the  same 
time  and  sold  under  the  execution.  We  see  no  reason 
why  this  principle  should  not  extend  to  proceedings 
by  garnishment,  and  the  creditor  be  permitted  to  gar- 
nish debts  due  to  all  of  the  debtors,  or  to  any  one  of 
them,  or  to  two  or  more  of  them,  at  the  same  time.* 
In  Michigan,  however,  the  rule  is  otherwise.  In  that 
state,  under  a  judgment  against  several,  none  but  those 
who  jointly  owe  them  all  can  be  garnished;"  nor  under 
a  judgment  against  one  person  can  two  or  more  per- 
sons be  united  in  one  garnishment,  where  their  liability 
to  him  is  several.^  No  other  reason  is  given  for  these 
remarkable  decisions  than  *'  that  garnishment  proceed- 
ings are  purely  statutory,  and  cannot  be  extended  by 
construction."      If  one  of  several   judgment   debtors 

»  Wallace  v.  Patterson,  2  Har.  &  McH.  4G3. 
»  McCarty  v.  Einlen.  2  Dall.  277;  2  Yoates,  190. 

»  Schatzill  7'.  Bolton.  2  McCord,  478;  13  Am.  Dec.  748;  Chatzcl  v.  Bolton, 
3  McConl,  .S3. 

*  Thompson  v.  Taylor,  13  Me.  420;  Ciignott  v.  Gilban.l,  2  Yoates,  35; 
Stone  r.  Dean,  5  X.  II.  502;  Parker  v.  Guillow,  10  N.  II.  103;  Locket  v.  Cliikl, 
11  Ala.  CAO. 

*  Ford  n.  Detroit  Dry  D.  Co.,  50  Mich.  358. 

*  Ball  r.  Young,  52  Mich.  47G. 

Vol.  I.  — 31 


§  170    PERSOX-VL  PROrEIlTY  .SUBJECT  TO  GARNISHMENT.       4S2 

luij^poiis  to  bo  indobtod  to  the  others,  ho  cannot  bo 
irarnishi'd  on  account  of  such  debt,  because  ho  is  not  a 
third  }H>rs(in,  williin  tlio  nioaniiiu;'  of  the  statutes  au- 
tliorizhiLif  third  persons  to  bo  iji'arnished.  The  denial 
of  the  rijjlit  to  garnish  him  might,  with  equal  pro- 
priety,  bo  sustained  on  the  ground  that  such  garnish- 
ment is  a  vain  act.  The  oidy  result  wliieli  could 
follow  from  its  allowance  would  bo  a  judgment  against 
such  debtor  for  the  amount  of  the  debt  duo  from  him 
to  his  co-judgment  debtors.  But  the  i)laintiif  has  al- 
read}'  a  judgment  against  him;  and  with  like  diligence 
may  make  one  judgment  as  efiicient  as  two,  because  the 
the  second  judgment  would  not  entitle  the  judgment 
creditor  to  seize  any  property  not  equally  open  to  levy 
under  the  first. 

§  170.  Assignment  of  the  Debt  Preceding"  the  Gar- 
nishment.—  Xoithor  the  law  of  garnishmont,  nor  that 
applicable  to  proceedings  supplemental  to  execution, 
will  bo  iieraiitted  to  interfere  with  the  right  of  a  credi- 
tor to  assign  an}'  debt  which  may  be  due  to  him/  The 
general  rule  with  respect  to  an  execution  or  judgment 
hen,  or  the  lien  acquired  by  the  levy  of  an  execution  or 
attachment,  is,  that  such  lien  attaches  to  the  real  rather 
than  the  apparent  interest  of  the  defendant,  and  is 
therefore  subject  to  alienations  or  encumbrances  made 
by  liim,  whether  known  to  the  judgment  creditor,  or 
not.  This  rule  is  applicable  to  proceedings  by  garnish- 
mont. The  lien  acquired  thereby  is  subordinate  to 
any  prior  assignment  made  by  the  defendant.  All  that 
the  law  requires  for  the  complete   protection   of  the 

>  Cairo  <t  St.  L.  R.  R.  r.  KcUenberg,  82  111.  295.  In  San.lridge  r.  Graves, 
1  Pat.  &  H.  101,  it  was  heUl  that  an  assigiiment  of  prior  date  to  a  garniahment 
would  be  treated  as  paramouut,  though  llierc  was  nu  proof  of  its  delivery. 


483      PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §170 

assif>-nee  is,  that  the  transfer  to  him  shall  have  been 
made  in  good  faith,  and  without  any  intent  to  hinder, 
delay,  or  defraud  creditors,^  and  that  he  shall  not  be 
guilty  of  such  laches  as  result  in  the  debtor's  paying 
the  debt,  without  notice  of  the  assignment,  either  to 
the  oriofinal  creditor  or  to  the  creditor's  creditor 
proceeding  by  garnishment.^  The  assignee  of  a  non- 
negotiable  demand,  wishing  to  protect  it  from  garnish- 
ment under  a  writ  against  his  assignor,  must  give  the 
debtor  notice  of  the  assignment.  In  the  absence  of 
such  notice,  the  debtor  must  necessarily  answer  that 
he  owes  the  original  creditor,  and  judgment  must  be 
entered  ao^ainst  him  for  the  amount  of  the  debt.  After 
his  liability  has  become  thus  fixed,  owing  to  the  laches 
of  the  assignee  in  not  giving  notice  of  the  assignment, 
the  latter  must,  upon  principles  of  natural  justice,  be 
held  to  be  estopped  from  asserting  his  assignment.' 
The  assignment  need  not  be  absolute.  It  may  be 
made  for  the  purpose  of  securing  a  debt  duo  from  the 
assignor  to  the  assignee;  and  if  so,  the  garnishment 
can  affect  notliing  beyond  the  surplus  which  may 
remain  after  the  payment  of  the  debt  thus  secured.* 
By  the  common  law,  the  assignment  of  choses  in  action 
was  not  recognized,  though  the  assignee  was  generally 
permitted  to  make  the  assignment  productive  by  con- 
ducting an  action  in  the  name  of  the  assignor.  But 
even  under  the  systems  of  jurisprudence,  in  which  an 

*  The  a-ssignment  muat  be  made  in  good  faith,  or  it  will  be  disregarded. 
Giddiugs  V.  Clctn-an,  12  N.  II.  153;  Hooper  v.  Hdls,  9  Pick.  435;  King  v. 
Gorhain,  4  M.-.  41)2. 

*  Drake  on  Attiichnicnt,  flee.  602. 

»  Walton*  V.  In.surance  (.'o.,  1  Iowa,  404;  C3  Am.  Dec.  451 ;  McCord  v.  Beatty, 
12  Iowa,  2y'J;  Tudor  v.  Perkins,  3  Day,  3G4;  Dodd  r.  Brott,  1  Minn.  270;  GG 
Am.  Dec.  541. 

«  Freetown  v.  Fiab,  123  Maaa.  355. 


§  170     TRRSOXAL  PROrERTY  SUBJECT  TO  GARNISIIMEXT.        ISt 

assi^^ninont  is  not  ivo»)<j[nizc(l  at  law,  it  is  i-nforcod 
ai^aiiist  a  Lrarnislum'iit.*  In  cttlior  words,  wlic>th(M-  an 
assij^nnuiit  is  ivooguized  at  law  or  not,  a  «^arnislnnent 
is  suhorilinato  to  all  pro-cxistin^]^  o(]uital>lo  assi<,nnn(3nts. 
It  is  not  essential  that  the  assiL,nuu('nt  should  he  per- 
fect at  law.  It  is  sufficient  if  it  is  a  good,  equitable 
assijj;nnuMit.-  It  may  he  made  hy  jKirol,"  or  hy  mere 
agreement  hetwcen  the  debtor  and  creditor,  that  the 
debt  shall  be  paid  to  some  third  person."*  No  doubt 
an  order  made  by  the  creditor,  directing  the  debtor  to 
pay  the  debt  to  some  third  person,  is,  after  its  accept- 
ance, a  good  and  sufficient  assignment  of  the  amount 
therein  directed  to  be  paid.'^  And  though  this  has 
sometimes  been  doubted,"  the  majority  of  the  authori- 
ties show  that  its  acceptance  is  not  essential  to  enable 
such  an  ortler  to  withdraw  funds  from  the  reach  of  the 
creditors  of  the  drawer.^  As  a  general  rule,  it  seems 
to  be  conceded  that  an  assignment  is  operative,  even 
before  notice  is  given  to  the  garnishee;^  and   that  if 

1  Norton  i-.  P.  Ins.  Co.,  Ill  Mas3.  532. 

»  Matheson  v.  Rutledge,  12  Rich.  41;  Byar  v.  Griffin,  31  Miss.  G03;  Smith 
V.  Sterritt,  24  Mo.  2G1;  Drake  on  Attachment,  c.  31;  Burrows  r.  Glover,  lOG 
Mass.  324;  Dressor  v.  McC.jrJ,  9(5  111.  389;  Insviranco  Co.  of  Pennsylvania  v. 
Phoenix  Ins.  Co.,  71  Pa.  St.  31;  Claflin  r.  Kimball,  52  Vt.  G. 

»  Norton  V.  P.  Ins.  Co.,  Ill  Mass.  532;  LittlefioKl  v.  Smith,  17  Me.  327;  Por- 
ter  r.  BuUanl,  2G  Mo.  448. 

♦  Black  V.  Paul,  10  Mo.  103;  45  Am.  Dec.  353. 

*  Dibble  r.  Gaston,  R.  M.  Cliarlt.  444;  Brazier  v.  Chappcll,  2  Brev.  107; 
Legro  r.  Suples,  10  Me.  252;  Lainkiu  v.  Phillips,  9  Port.  9S;  Uoaillcy  i:  Cay- 
wood,  40  Ind.  239;  Colt  v.  Ives,  31  Ctmn.  25;  Adams  v.  Robinson,  1  Pick.  401; 
Davis  V.  Taylor,  4  Mart.,  N.  S.,  134. 

•  Sanda  V.  Matthews,  27  Ala.  399. 

^  Ne-smoth  v.  Dunn,  8  Watts  &  S.  9;  United  States  v.  Vaughan,  3  Biun. 
394;  Pellman  r.  Hart,  1  Pa.  St.  2G3. 

*  Wakefield  r.  .Martin,  3  .Mass.  558;  Smith  v.  Clark,  9  Iowa,  241;  Walling 
V.  Miller,  15C'al.  liS;  McCubbins  v.  Atchison,  12  Kan.  IGG;  Smith  r.  Sterritt, 
24  Mo.  262;  Smith  v.  Blitcliford,  2  Iml.  184.  This  rule  has  been  denied  in  sev- 
eral states.  Jmiah  r.  Judd,  5  Day,  5.34;  Woodbridgo  v.  Perkins,  3  Day,  304; 
Hunt  V.  Forbes,  GO  Mius.  745;  Robertson  ?».  Baker,  10  Lea,  300. 


485      PERSONAL  PROPERTY  SUBJECT  TO  GARXISmiENT.     §170 

he  receives  such  notice,  even  after  the  service  of  the 
writ  upon  him,  he  not  only  ma}^,  but  he  must,  if  he 
still  has  an  opportunity  to  do  so,  present  the  fact  of 
the  assignment  as  a  defense  to  the  garnishment  pro- 
ceedings.^ While  there  is  no  doubt  than  an  order  or 
draft  for  the  whole  of  a  debt  or  fund,  whether  accepted 
or  not,  takes  precedence  over  a  subsequent  garnish- 
ment,^ a  more  difficult  question  arises  when  the  order  or 
draft  is  for  a  part  only  of  such  debt  or  fund,  A  party 
entitled  to  a  debt  has  no  right  to  make  a  partial  assign- 
ment thereof,  and  such  assignment,  if  attempted,  is 
inoperative  until  the  debtor  assents  thereto.  Hence, 
it  has  been  held  that  such  an  order  or  draft,  until  ac- 
cepted by  the  debtor,  leaves  the  entire  debt  subject  to 
garnishment.^  If,  however,  under  the  laws  of  the  state, 
the  check  or  draft  imposes  a  duty  on  the  person  or 
corporation  on  which  it  is  drawn,  to  make  payment 
thereof,  it,  though  for  a  part  only  of  the  debt  or  fund, 
and  not  accepted,  operates  as  an  assignment  25'>*o  tanto, 
and  must  be  respected  in  preference  to  a  subsequent 
garnishment*  "  An  assignment  of  a  chose  in  action  need 
not  be  by  any  particular  form  of  words  or  particular 
form  of  instrument.  Any  binding  appropriation  of  it  to 
a  particular  use,  by  any  writing  whatever,  is  an  assign- 

1  Kimbrough  v.  Davis,  34  Ala.  58.3;  Adama  v.  Filer,  7  Wis.  30C;  73  Am. 
Dec.  410;  Greentrco  r.  Iloscnstock,  M  N.  Y.  Sup.  Ct.  505;  Cray  ton  r.  Clark,  11 
Ala.  787;  Foster  r.  White,  9  Port.  2'Jl;  Ray  v.  Bauciis,  43  Barb.  310;  Gibson 
V.  Haggarty,  15  Abb.  Pr.  400;  Largo  v.  Moore,  17  Iowa,  258;  Funkhouser  v. 
How,  24  Mo.  44;  Leahey  v.  Dug<lale,  41  Mo.  517;  OUlhain  v.  Ledbcttcr,  1 
How.  (Miss.)  43;  20  Am.  Dec.  090;  Lyman  v.  Cartwright,  E.  D.  Smith,  117; 
Pago  r.  Thomp.son,  43  N.  H.  373. 

»  Robljins  v.  liiicoa,  3  Greenl.  315;  Ikuik  of  Commerce  v.  Bogy,  44  Mo.  13; 
100  Am.  Dec.  247. 

»  Gibson  V.  Cooke,  20  Pick.  15;  .32  Am.  Dec.  194;  MamleviUo  v.  Welch,  5 
Wheat.  277. 

'Bank  of  America  r.  Irnliana  Banking  Co.,  Ill  111.  483;  Union  National 
Bank  v.  Oceana  County  Bank,  80  III.  212;  22  Am.  Rep.  186. 


§  J 70     rKIt-^OXAL  TROrERTY  SUBJECT  TO  OARNTSHMEXT.       48;] 

uuMit.  (U*.  wliat  is  tilt'  s;imt>,  a  (i-aiisfcr  of  tlic  owiuTshij). 
And  where  it  appears  that  u  drlif,  due  iVom  a  trusteo 
to  tlio  tlot'i'iulaiit  lias  Ix-cii  »'(|uital>ly  assi'^iicd,  tlir  cdurt 
will  take  co-^ni/aiua^  of  the  assi^nini'iit,  and  protect  tho 
ri{4;hts  of  the  assij^noo.  For,  a.s  tho  dcri'iulaiit  lia.s 
parted  with  his  interest  in  tho  deht,  and  can  no  lonijjer 
maintain  an  action  tor  it  against  the  trustee  for  his 
own  benefit,  and  iis  tho  plaintilf  can  accjuire  no  greater 
interest  in  tho  ilebt  than  tho  defendant  had  at  the  tinio 
of  the  si'rvice  of  tho  trustee  process,  it  results  that  the 
trustee  cannot  be  char<ifed  for  that  wliicli  he  has  equi- 
ti\bly  ceased  to  owe  tho  defendant  and  owes  to  another 
person."' 

If  after  notice  oi'  an  assignment  the  debtor  pays 
the  debt  either  to  the  original  creditor  or  to  tho 
creditor's  creditor,  proceeding  by  garnishment,  such 
payment  constitutes  no  defense  to  a  subsequent  action 
brought  by  the  assignee.  Even  if  the  debtor  should 
plead  tho  assignment  as  a  defense  to  the  garnishment, 
and  such  plea,  on  the  trial  thereof,  should  be  deter- 
mined against  the  debtor,  this  determination  is  not 
binding  upon  the  assignee;  and  the  assignee  may,  not- 
withstanding judgment  against  the  debtor  and  the 
enforcement  thereof,  assert  his  rights  as  assignee  in  an 
action  l)y  him  against  the  debtor.''^  Generally,  it  is  no 
objection  to  an  assignment  that  the  debt  is  not  due 
when  assigned,  but  the  debt  may  be  attempted  to  be 
assigned  before  it  can  be  known  that  it  will  ever 
become  due.  Impecunious  debtors  find  it  necessary  to 
anticipate  their  future  earnings  and  to  obtain  advances 
on  account  thereof.      Tf  tiny  should  make  an  assign- 

'  Conway  r.  Cutting,  51  N.  H.  407. 

'  McKnight  r.  kin«cly.  2.')  IikI.  .3:?G;  87  Am.  Dec.  304;  Gates  v.  Kerby,  13 
Mo.  lo7;  Myurs  r.  Bcciiuiu,  'J  Ired.  110;  OrmoaJ  r.  Moyo,  11  Ired.  564. 


4S7       PERSONAL  PROPERTY  SUBJECT  TO  GARXISHMEXT.     §170 

ment  for  the  mere  purpose  of  preventing  the  pro- 
ceeds of  such  earnings  from  reaching  their  creditors, 
such  assignment  would  undoubtedly  prove  abortive,  as. 
against  such  creditors,  by  virtue  of  the  laws  making 
void  all  transfers  wade  with  a  view  of  hindering,  de- 
laying, or  defrauding  the  creditors  of  tlie  transferrer. 
If  not  subject  to  attack  and  demolition  on  this  latter 
ground,  the  next  question  to  arise  will  be  whether  the 
earninors  or  other  monevs  to  become  due  had  at  the 
time  of  their  transfer  such  an  existence  in  the  eye  of 
the  law  as  to  be  proper  subjects  of  assignment.  The 
general  rule  upon  the  subject  of  the  assignment  of 
moneys  to  become  due  for  personal  services  is,  that  if 
the  assignor  be  at  the  time  employed,  or  under  a  valid 
contract  of  employment,  he  may  assign  the  wages  to 
become  due  him,  and  that  such  assignment  is  para- 
mount to  any  subsequent  garnishment.^  It  does  not 
appear  to  be  necessary  that  the  contract  of  employ- 
ment be  for  any  specific  time.  Hence  an  assignment 
by  one  who  was  employed  by  the  day  was  upheld.^ 
The  fact  that  a  wf)rkman  is  employed  by  the  piece  is 
not  material.^  So  one  who  has  contracted  to  construct 
a  building  may  assign  moneys  to  become  due  him  on 
the  completion  of  his  contract.*  But  an  assignment  of 
moneys  to  be  earned  under  a  contract  not  yet  secured,^ 

'  I^nnan  v.  Smith,  7  Oray,  150;  Boylen  r.  Leonard,  2  Allen,  407;  Darling 
t>.  AndroWM,  9  Alku,  lOG;  Webb  r.  Jowttt,  2  Met.  UOS;  White  r.  Richanlson, 
12  N.  H.  9.3;  Hall  r.  Buffalo,  1  Keyes,  I'J'J;  Tiernay  r.  McGarity,  14  R.  \.  231; 
Johnson  r.  Pace,  78  111.  143;  Augur  r.  N.  Y.  B.  &  P.  Co.,  39  Conn.  2G;  Field 
r.  Mayor  of  N.  Y.,  (J  N.  Y.  179;  57  Am.  Dec.  435,  and  note;  Devlin  v.  Mayor 
etc.  of  N.  Y.,  50  How.  Pr.  1;  03  N.  Y.  15. 

'Oarland  v.  Hamilton,  51  N.  H.  413. 

»  Hartley  r.  Tapley,  2  Gray,  6C5;  Kane  v.  Clough,  30  Mich.  43C;  2t  Am. 
Rep.  599. 

*  Hawky  r.  Hnntol,  ,39  Conn.  20. 

»  Mulhall  I',  yuin,  1  Gray,  106. 


§  170     I'ERv^ONAL  rROPEliTY   SUBJECT  TO  O.ARNISIIMENT.       488 

or  uiuKr  siu'li  iMuploynu'ut  as  llie  ass'iL^nior  iiiight  there- 
atur  nlttuin,'  or  Inr  survives  to  be  rendered  beyond 
liis  present  trnu  of  employment,  wIumi  lie  was  then 
MTvintJ  undiM'  a  eontraet  or  eleetion  lor  n  time  speei- 
tied,"  are  all  void  as  bt'injj^  attem})ted  transfers  of  niero 
possibilities  not  coiqiled  with  any  inti'rest,  'V\\c  in- 
eund)ent  of  a  public  otHce  may  assign  his  claim  for  past 
services.  With  respect  to  services  to  be  prrformed,  or 
salary  to  be  earned  in  future,  the  rule  is  probably  dif- 
ferent, "it  being  contrary  to  the  public  policy  of  the 
law  that  a  stipend  to  one  man  for  future  services  should 
be  transferred  to  another  who  could  not  perform 
them."  "  Un(|Ucstionably  any  salary  paid  for  the  per- 
formance of  a  pui)lic  duty  ought  not  to  l)e  perverted 
to  other  uses  than  those  for  which  it  is  intended."' 
It  must,  however,  be  admitted  that  these  principles 
have  not  been  universally  ap[)lied;*  but  a  further  con- 
sideration of  them  is  hardly  germane  to  our  subject, 
Ijecause  salaries  due  to  public  officials,  whether  assigned 
or  not,  are,  upon  principles  of  public  policy,  not  subject 
to  execution.  When  the  garnishment  and  the  transfer 
of  a  debt  occur  on  the  same  day,  and  there  is  doubt 
with  respect  to  which  was  prior  in  point  of  time,  the 
burden  of  proof  has  been  adjudged  to  rest  upon  the 
as.«ifrnee  to  establish  that  his  assii^nraent  was  anterior 
to  the  garnishment,^  In  some  of  the  states,  a  person 
claiming  to  be  an  assignee  may  be  brought  before  the 

»  Jennyn  r.  Moffatt,  7.')  Pa.  401. 

»  Eagan  r.  LuLl)y,  13:5  Mass.  5-43. 

»  Billings  V.  O'Brien,  14  AIjIj.  Pr.,  N.  S.,  247;  Arbuckle  v.  Cowtan,  3  Boa. 
&  P.  328. 

*  Brackett  r.  Blake,  8  Met.  33'.;  41  Am.  Deo.  442;  SUto  Bank  v.  Hastings, 
15  Wis.  75;  Thurston  r.  Fairman,  9  Hun,  585;  People  v.  Dayton,  50  How.  Pr. 
143. 

'  Beigman  r.  Sells,  39  Ark.  97. 


489       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §171 

court  ill  the  garnishment  proceedings,^  and  the  ques- 
tion whether  the  assignment  is  vahd  or  fraudulent 
there  litigated  and  determined.^ 

§171.  Asserting  Garnishment  as  a  Defense. — A 
garnishee  may  at  the  same  time  be  pursued  both  by  his 
creditor  and  by  his  creditor's  creditor.  This  question 
then  occurs:  In  what  manner  and  by  what  means  may 
the  garnishee  prevent  the  pursuit  by  both  parties  from 
being  successful?  or  in  other  words,  how  shall  he 
avoid  the  necessity  of  the  double  payment  of  a  single 
debt?  Manifestly  the  garnishment  may,  in  some  man- 
ner, be  brought  to  the  attention  of  the  court,  and 
when  so  brought  to  its  attention,  must  be  given  some 
effect,  otherwise  a  garnishment  could  always  be  an- 
nulled by  a  subsequent  action  for  the  garnished  debt. 
That  the  garnishment  does  not  constitute  proper  mat- 
ter for  a  plea  in  bar  is  obvious,  for  the  cause  of  action 
yet  exists.^  If  a  person  is  first  garnished  by  his 
creditor's  creditor,  and  is  afterward  sued  by  the  cred- 
itor, there  are  a  number  of  exceedingly  respectable 
authorities  which  insist  that  the  garnishment  may  be 
asserted  by  a  plea  in  abatement  to  the  suit  brought  by 
the  creditor.*     Upon  this  theory,  the  cause  of  action 

'Cadwaladcr  r.  Hartley,  17  Ind.  520;  Born  v.  Staaden,  24  111.  320.  The 
assignee  8  right  cannot  be  determined  unles.s  ho  ia  made  a  party.  Simpson  v. 
Tippin,  5  Stow,  i  P.  208. 

■■'  Daggett  V.  St.  L.  M.  F.  Ins.  Co.,  19  Mo.  201;  Loo  v.  Tabor,  8  Mo.  322; 
Keep  r.  Sanderson,  2  Wid.  42;  GiJ  Am.  Dec.  404;  12  Wi,s.  352;  Prentiss  v.  Dan- 
aker,  20  Wis.  311;  Ingleiiart  v.  Moore,  21  Tex.  501. 

»  C'liso  V.  PVfborn,  27  Iowa,  280;  Near  v.  Mitcliell,  23  Mich.  382. 

♦Brook  r.  Smith,  J  Salk.  280;  Enjbrco  v.  Hauna,  5  Johns.  101;  Brown  v. 
Somer\ille,  8  Md.  444;  Haaelton  v.  Monroe,  18  N.  H.  598;  Phila.  Sav.  Inst. 
V.  Stnothurst,  2  Miles,  439;  Fitzgerald  v.  Caldwell,  1  Ycates,  274;  Irvine  t. 
Lumber  man's  Bank,  2  Watts  &  S.  190;  Cheongo  r.  .loncs,  3  \Va.sh.  359;  Wal- 
lace I'.  McConnell,  13  Pet.  130;  .Mattingly  v.  Boyd,  20  How.  128;  Cliso  w.  Fre- 
born,  27  Iowa,  280;  Near  v.  Mitchell,  23  Midi.  382. 


§  171       FEUSOXAL  rROPERTY  SUBJECT  TO  GARNISHMENT.     100 

which  existoil  untorior  to  i]\o  pirnishiiuMit  is  treated 
as  theirl>v  ^ii^pnulcd  until  tlie  (Irtiiiiiiuation  of  the 
aetiDii  in  whieh  the  i^arnishmt  nt  issuinl ;  and  any  aetioii 
eoniMUMU'ed  after  sueli  Liarnishenient  is  ahated,  or  in 
otlier  words,  tlirown  «»ut  of  court,  leavin<^  the  plaintitV 
no  othrr  reniedv  than  to  wait  until  tin*  termination  of 
the  suit  in  whieh  the  ganiishuient  was  issued,  and 
then  to  ree»>ninience  his  aetion.  The  result  of  this 
suspension  of  ]>laintiif's  eause  of  aetion  may  be  very 
disjistrous  to  him.  To  illustrate:  Let  us  suppose  that 
A  is  indel)ted  h,  and  that  C  in  an  aetion  ai^ainst  B 
u;arnishes  this  delit.  It  may  be  that  }i  does  not  owe 
C,  and  will  ultimately  recover  judguient  against  hiia 
for  costs;  or  even  when  B  does  owe  C,  the  debt  may 
be  satistietl  out  of  a  levy  made  on  other  property,  and 
with<mt  enforcing  the  garnishment.  But  if,  pending 
this  litigation  between  B  and  C,  B  can  take  no  pro- 
ceedings against  A,  the  latter  may  in  the  mean  time 
become  insolvent,  or  perhaps  be  relieved  from  liability 
through  the  operation  of  the  statute  of  limitations. 
This  wrong  to  B  can  be  avoided  only  l)y  permitting 
him  to  commence  and  maintain  his  action  against  A, 
and  to  take  such  proceedings  therein  as  will  enable 
liim  to  secure  his  debt.  We  therefore  yield  our 
assent  to  those  authorities  which  insist  that  a  preced- 
ing garnishment  never  constitutes  a  sufficient  cause  for 
the  abatement  of  a  suit.^  In  states  whence  these 
authorities  proceed,  the  remedy  of  the  garnishee  is 
either   by  a  motion   for  the  continuance  of  the  suit 

'  Winthrop  v.  Carlton,  8  Mass.  456;  Carrol  v.  McDonogh,  10  Mart.  GOO; 
Mortfju  V.  Webb,  7  Vt.  123;  Spicer  v.  Spicor,  23  Vt.  G78;  Jones  v.  Wood,  30 
Vt.  2G8;  Crawford  >•.  Sb.le,  9  Ala.  887;  44  Am.  Dec.  4(53;  Smith  v.  Ifl.itch- 
ford,  2  lud.  1H4;  52  Am.  Dec.  .504;  Hick.s  v.  (ileason,  20  Vt.  13'J;  McFadden  v. 
O'Doimell,  18  CaL  IGO;  McKeou  v.  McDermott,  22  Cal.  0G7;  83  Aiu.  Dec.  86. 


491     PERSONAL  PROPERTY  SUBJECT  TO  GARXISHMENT.       §  171 

brought  against  him  by  his  creditor,  or  by  asking  that 
the  judgment  in  such  suit  shall  be  stayed  until  he 
is  released  from  liability  arising  in  consequence  of 
the  garnishment.  If  the  garnishment  is  made  after 
instead  of  before  the  commencement  of  the  suit,  it 
may,  in  those  states  where  the  validity  of  a  garnish- 
ment so  made  is  conceded,  be  brought  to  the  attention 
of  the  court,  and  a  stay  of  proceedings  obtained  until 
the  release  or  settlement  of  the  proceedings  by  gar- 
nishment.^ In  cases  where  the  debtor  has  no  other 
means  of  escape  from  a  twofold  enforcement  of  the 
liability  against  him,  he  may  procure  an  injunction." 
The  garnishment  may  have  resulted  in  a  judgment 
ajjainst  the  oarnishee,  in  which  case  the  effect  of  such 
judgment  prior  to  its  satisfaction,  upon  an  action 
brought  against  him  by  his  original  creditor,  remains 
to  be  considered.  In  England,  such  a  judgment  seems 
to  be  refjarded  as  a  satisfaction  or  mer<xer  of  the  orioji- 
nal  debt,  and  therefore  as  a  complete  bar  to  all  further 
action  against  the  garnishee,^  and  a  like  effect  has  been 
sometimes  conceded  to  it  in  the  United  States.*  But 
the  judgment  in  garnishment  does  not  in  fact  produce 
any  satisfaction  until  it  has  been  paid,  or  property  has 
been  levied  upon  sufficient  to  produce  its  payment  in 
whole  or  in  part.  The  debtor  whose  demand  was  gar- 
nished is  not  entitled  to  any  credit  for  the  amount 
thereof  upon  tiie  debt  due  from  him  to  the  garnishing 
creditor,  and   may,  notwithstanding  the  garnishment 

»  Manku  V.  Wlieclock,  1  M..nt.  4t);  Drew  v.  Towlo,  7  Fost.  412;  Wadlcigh 
V.  PiUlmry,  14  N.  H.  37.'i.     But  8e«3  VValdhoim  t-.  Bumlcr,  30  How.  Pr.  181. 
»  Prc«t<in  r.  H.irris,  24  Mi««.  247. 

*  Mcnaiii<U  r.  MuglicH,  '.i  EaHt.  307;  Savago's  Caso,  1  Salk.  291. 

♦  Mattli..w»  ,:  MougliUMi,  II    Mc.  .'177;  McAlliHtcr  r.  BrookH,  22  Me.  80;  38 
Am.  Due.  252;  Cuburu  v.  Curruiu,  1  Buuli,  242;  Kiug  t^.  VauCo,  40  lud.  240. 


§  171     rKUSON^VL   rROriCRTY  SUBJECT  TO  CARNISHMKNT.       492 

jiulj^liu-!»t,  hv  ooiiipilhtl  to  j)ay  (lu>  \vli<»li>  dilit.  Thoro- 
foro  ho  oiiLrht  not  to  Ix'  Itouiul  ;il>solutrlv  l>v  the  {jar- 
n'.slimoiit  iiulu'mont  Uixuiiist  his  debtor;  nor  should  tlio 
hittor  ho  allowod  to  plead  it  in  Iku*  unless  he  has 
siitistiecl  it  absolutely  «.)r  eonditioiially,  either  in  whole 
or  in  part.' 

'  Moriam  r.  lUiiulIott,  13  Tick.  511;  ]?iMiiiu>n  v.  Ni>l)lo,  8  (la.  6-11);  Farmer 
r.  Simpson,  G  Tox.  303;  Cook  v.  FioKl,  3  Ala.  53;  3G  Am.  Dec.  436. 


493  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  172 


CHAPTER  XII. 

REAL  PROPERTY  SUBJECT  TO  EXECUTION. 

FIRST.  —  OF   REAL   ESTATE   HELD   BY   LEGAL  TITLES. 

§  172.  Lands  were  not  subject  to  execution  at  common  law, 

§  172  a.     Uncertain  and  contingent  estates. 

§  172  b.     Co-tenant'a  interest. 

§  173.  Naked  legal  titles. 

§  174.  Title  without  possession. 

§  175.  Possession  without  title. 

§  17G.  Interests  acquired  from  the  government. 

§  177.  Estates  at  will. 

§  178.  Estates  in  remainder  or  reversion. 

§  179.  Franchises. 

§  180.  Effect  of  sale  of  franchise. 

§  181.  Interest  of  a  vendor  before  conveyance. 

§  182.  Interest  of  defendant  in  execution  before  conveyance  and  after  Bale. 

§  183.  Interest  of  heir  or  devisee  before  final  distribution. 

§  184.  Interest  of  mortgagee  before  foreclosure. 

§  185.  Interest  of  a  dowrcss  l^efore  assignment. 

§  186.  Interest  of  husband  as  tenant  by  courtesy  or  by  entirety. 

SECOND.  —  OF   EQUITABLE  TITLE.S  TO   REAL   ESTATE. 

§  187.  Trust  estates  at  common  law,  and  under  statute  29  Charles  U. 

g  188.  Trust  estates  umler  American  statutes. 

§  189.  Resulting  trusts. 

§  189  a.     Devises  and  trusts  to  witlulraw  property  from  execution. 

§  190.  Mortgagor's  equity  of  redemption. 

§  191.  Equity  of  redemption,  where  execution  is  for  mortgage  debt. 

§  102.  E<iuity  of  redemption  under  deeds  intended  as  mortgages. 

§  19.3.  Interest  of  purcliaaer  at  execution  sale  before  conveyance. 

S  194.  Interest  of  purchaser  at  voluntary  sale  before  conveyance. 

g  172.    Lands  were  not,  by  the  Common  Law  of 

En^laiul,  subject  ti)  execution  ibr  the  debt  of  any  pri- 
vate citizen.  "Thi.s  rule  was  considered  as  a  fair  and 
neces-sary  result  from  the  nature  of  the  feudal  tenures, 
accordiiif,'  to  which  all  the  lands  in  that  country  were 
lield.      In  tlie  ca.se  of  the  kin<,^  however,  an  execution 


S  1:2  RK.\L   PROPKUTY   SUBJEt^  TO   KXKCUTION.  404 

nlwnvs  issiiicl  aijjaiiist  tho  lands  as  wrll  as  tht*  goods 
of  a  puMir  dihtor,  ln'causr  tin*  dclitor  was  ronsidiTod 
as  lK'ini4:  '>"t  only  liouiul  in  j'lrsun.  l>ut.  as  a  trudatory, 
who  luld  iiu'diatcly  or  iinmrdiattly  from  the  king;  and 
tluToforo.  holding  what  ho  had  from  tho  king,  he  was 
from  thenco  to  satisfy  what  he  owed  the  king."*  "I^y 
an  English  statute  passed  in  the  year  1  285,  Westmin- 
ster 2,  ehaptiT  18,  lands  were  partially  suhjected  to  he 
taken  in  execution  untler  an  cicijif,  ami  held  until  the 
debt  should  he  levied  upon  a  reascmahle  price  or  ex- 
tent."" Under  the  inlluenee  of  the  English  statutes, 
and  of  the  various  statutes  upon  the  suhjcrt  in  force 
in  this  country,  as  a  general  rule  all  legal  estates  in 
land  may  he  sold  under  execution  or  extended  under 
an  elegit.  "All  lands  of  the  defendant  are  liable  to  be 
extended,  whether  he  hath  an  estate  in  fee,  in  tail,  for 
life,  or  fur  years;  but  copyhold  lands,  or  a  lease  of 
copyhold  lands,  are  not  cxtendil)le  on  an  clcf/il  as  part 
of  the  realty.  But  lands  held  in  ancient  demesne  may 
be  extended  and  delivered  over  on  an  elegit."^  A  rent- 
charge  may  be  taken  in  execution  as  real  estate,*  though 
a  rent-seek  cannot.^  It  is  not  clear  whether  an  ad  vow- 
son  could  be  extended  under  an  elegit  or  not.'  A  life 
estate  was,  no  doubt,  subject  to  execution  at  common 
law,  and  also  under  the  statutes  of  nearly  all  of  the 

>  Jonea  r.  Jones,  1  Bland,  443;  18  Am.  Dec.  327. 

»  Duvall  r.  Waters,  1  lllaii.l,  ')0l);  18  Am.  Deo.  3.')0;  Coou.Ls  r.  Jordan,  3 
Blin.l,  2S4;  22  Am.  Dec.  2.%;  Drayton  r.  MarshdU,  Rice  E<i.  'M3;  33  Am.  Dec. 
84;  Baak  of  Utica  r.  M-rsereau,  3  Barb.  C\i.  528;  49  Am.  Dec.  189. 

»  Watson  on  Sheriffs.  208. 

♦  Dougall  r.  Turnbull,  10  Q.  B.  121;  Hurst  r.  Lithgrow.  2  Ycate-t,  2.');  1  Am. 
Dec.  32G;  WfKjton  r.  Shirt,  C  ro.  Eliz.  742;  WaUon  on  SlieriffH,  20S;  Proplu  r. 
Hutkins,  7  Wend.  403.  But  tliia  ca-so  iteemB  to  Ikj  overruled  by  I'ayn  v.  Bcol, 
4  Denio.  4^15;  Huntington  r.  Forkuon,  0  Hdl,  149. 

*  Doo^all  r.  Turnbull,  S  U.  C.  Q.  B.  «i22;  Walhal  r.  Heath.  Cro.  Eliz.  656. 

•  Kobituon  r.  Tongc,  3  I'.  Wms.  401 ;  Wataon  ou  Sheriilij,  20S. 


495  REAL  PROPERTY   SUBJECT  TO  EXECUTION.  §  172 

United  States;'  but  a  different  rule  formerly  prevailed 
in  Pennsylvania.^  Leasehold  estates  are  also  unques- 
tionably subject  to  execution,  though  there  may  be 
some  question  whether  they  should  be  levied  upon  as 
real  or  as  personal  propert3\  In  Pennsylvania,  a  lease 
of  land  is,  for  the  purposes  of  execution  sale,  treated  as 
an  estate  in  the  land  and  as  properly  levied  upon  as 
such.^  Where  the  statute  provides  for  a  mode  of  levy- 
ing on  or  selling  "  chattels  real,"  a  lease  of  lands  for  a 
term  of  years,  with  the  right  to  dig  for  and  remove 
coal  during  the  term  of  the  lease,  and  to  construct  all 
necessar}'  buildings,  must  be  levied  on  and  sold  as  a 
chattel  real.  "  Chattels  real  are  interests  annexed  to 
or  concerning  the  realty,  as  a  lease  for  years  of  the 
land ;  and  the  duration  of  the  term  of  the  lease  is  im- 
material, provided  it  be  fixed  and  determinate,  and 
there  be  a  reversion  or  remainder  in  fee  to  some  other 
person."*  In  the  absence  of  any  special  statute  upon 
the  subject,  we  think  the  weiglit  of  authority  in  favor 
of  the  proposition  that  a  leasehold  interest  in  lands 
must  be  levied  upon  and  sold  as  an  estate  in  personal 
property.^  Lands  devoted  to  the  use  of  the  public  are 
not  subject  to  execution.  This  rule  applies  to  all  lands 
used  by  tlic  state,  or  by  any  county  or  city  thereof  for 
specific  public  uses;  as  for  state  houses,  streets,  public 

>  We«tervclt  r.  People,  20  Wond.  41G;  Fitzhugh  v.  Hellen,  3  Har.  &  J.  20G; 
Poycc  r.  Walltr,  2  li.  Mon.  91;  Mcmlenhall  r.  Randon,  3  Stew.  &  P.  251; 
Hitcb(x>ck  r.  HotchkwH,  1  Conn.  470. 

■I  Howell  f.  WcH.lfort,  2  Dall.  75;  Near  r.  Watts,  8  Watts,  319;  Snavely  v. 
W«gner,  3  Pa.  St.  275;  45  Am.  Dec.  G40;  Eyrick  v.  littrick,  13  Pa.  St.  488; 
Common wc-Uth  r.  MUn,  3()  Pa.  St.  49. 

»Titu»villo  N.  I.  Work«'  Apical,  77  Pa.  St.  103;  Sav.crA  r.  Vie,  14  Pa. 
8t.  99. 

♦  Hyatt  r.  Vincennen  Bank.  113  U.  S.  408. 

»  Ban-  r.  Doc.  0  Plat-kf.  XVi;  .38  Am.  Dec.  140;  Coombs  v.  Jordau,  3  Bland, 
2M;  22  Am.  Dec.  230;  Buhl  r.  Keiiyoa,  11  Mich.  249. 


§l?2a  KEAL  PROPERTY  SUBJECT  TO  EXECUTION.  4% 

t^quairs,  rliarity  liosj>itals,  and  tho  likt-.'  Churches, 
though  devoted  to  public  uses,  are  ]>riviite  j)roperty, 
liable  to  be  seized  and  sold  to  pay  the  debts  of  their 
owners.^  At  conifuon  law,  neither  a  church-yard,  nor 
the  glebe  of  a  parsonage  or  vicarage,  could  be  extended 
under  an  elegit.  They  were  regarded  as  solemnly  con- 
secrated to  God  and  religion.^  A  sentiment  of  rever- 
ence toward  the  graves  of  companions  and  ancestors 
would  certainly  go  tar  toward  impelling  the  courts  in 
this  country  to  hold  that  a  church-yard,  used  as  a  ceme- 
ter}',  is  not  subject  to  execution.* 

§  172  a.  Uncertain  and  Contingent  Estates  may 
be  divided  into  two  classes:  1.  Those  of  which  the 
debtor  is  seised  or  in  which  he  has  some  interest  at 
the  present  time,  but  of  which  his  seisin  or  interest  is 
liable  to  be  divested  upon  the  happening  of  some  future 
event;  and  2.  Those  in  which  the  debtor  has  no  pres- 
ent seisin  or  interest,  but  to  which  ho  may  become 
entitled  upon  some  future,  uncertain  contingency.  In 
the  cases  of  the  first  class,  his  interest,  if  a  legal  one, 
is  subject  to  execution.  Hence,  if  the  defendant  is 
seised  of  an  estate  defeasible  upon  the  contingency  of 
his  dying  without  issue  living  at  the  time  of  his  de- 
cease, he  has  a  present  estate  "liable  to  be  taken  in 
execution  and  held  by  the  creditor  until  the  happening 
of  the  contingency."''  Upon  the  same  principle,  if  an 
executor  or  trustee  becomes  a  purchaser  at  a  sale,  which 
the  heir  or  cestui  que  trust  may  elect  to  avoid,  he  has,  in 

1  State  V.  Finlay.  33  La.  Ann.  113;  Lconartl  v.  Reynolds,  14  N.  Y.  Sup. 
Ct.  7.3. 

^  Presbyterians  v.  Colt,  2  Grant  Cas.  75. 

»  Wats^)a  on  Slieriffs,  208;  Arl)Ucklo  v.  Cowtan,  3  Bos.  &  P.  327. 

*  lirnwn  V.  Lutlieran  Church.  23  Pa.  St.  500. 

»  Pliillips  r.  Rogers,  12  Met.  405. 


497  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  172  a 

the  absence  of  such  election,  an  estate  subject  to  exe- 
cution.^ So  one  who  purchases  lands  from  a  state, 
under  a  contract  which  provides  for  certain  stated  pay- 
ments, upon  the  making  of  which  he  will  become  en- 
titled to  a  patent,  and  upon  default  in  any  of  which 
he  forfeits  all  rights  under  his  contract,  has  a  vendible 
interest  in  such  lands  prior  to  their  forfeiture,  and  one 
which  is  subject  to  execution."  The  estate  acquired 
under  the  levy  of  an  execution  in  this  and  similar  cases 
is,  of  course,  no  better  or  more  certain  estate  than  that 
held,  by  the  judgment  debtor,  and  remains  liable  to  be 
defeated  by  the  same  contingency  to  which  it  was  sub- 
ject before  the  execution  sale.^  It  is  equally  clear  that 
in  cases  of  the  second  class,  there  is  no  estate  or  inter- 
est subject  to  execution.  A  judgment  debtor  having 
a  right  to  enter  for  condition  broken,*  or  to  disaffirm  a 
conveyance  made  by  him  while  a  minor,^  is  not  seised 
of  any  present  estate.  Whether  he  will  in  future  be- 
come seised  of  an  estate  is  dependent  upon  his  volition, 
— upon  the  exercise  of  a  mere  personal  privilege, 
and  this  privilege  does  not  pass  by  an  execution  sale. 
This  rule  applies,  though  the  breach  of  condition  giv- 
ing the  judgment  debtor  a  right  of  re-entry  has  taken 
place.  Where  it  was  claimed  that  the  levy  might  be 
regarded  as  an  entry,  and  as  therefore  revesting  tlio 
estate  in  the  defendant,  tlie  court  said:  "It  would  be 
altogether  illogical  to  hold  that  the  entry  by  the  sherilf, 
for  the  purpose  of  making  the  levy,  would  serve  as  a 
substitute  for  entry  by  the  grantor  or  his  heirs.     This 

»  Thornton  »•.  Willis,  05  Cia.  184. 

»  McWilliaina  v.  Withingtou,  7  Saw.  205;  7  Fed.  Rep.  32G. 

•  Thomaji  r.  Rcconl,  47  Mu.  500;  74  Am.  Doc.  500. 

♦  Bangor  r.  Warren,  :U  Me.  3'J4;  5G  Am.  Dec.  057. 
^  Kendall  V.  Lawrence,  22  Pick.  540. 

Vol.  I.— 32 


f  ITJb  KKAL   rUOrEUTY   SriUKcT  TO   KXECUTTON.  498 

would  lu'  t»»  say  that  tlu-rr  was  no  cstatr  Inr  the  slicriir 
to  seize,  ami  that  still,  hv  MrttinLr  ahout  inakiu<r  the 
seizuiw  tluMitlii'cr  iniL^ht  hiiiiij^  thrrstatc  into  «xlstriiee. 
As  well  e«>iil(l  W(>  put  iVuit  on  a  ivr  hv  LToini^^  with  a 
basket  to  ijjatlR'r  it."'  A  convcyaiur  of  land  may  ho 
]>roeunxl  hy  fraiul,  on  account  of  which  the  jj^rantor 
may  have  the  riijjht  to  proceed  in  e(|nity  to  annul  the 
eonveyanee.  This  ri«;ht  is  very  pjenerally  held  to  be  a 
personal  riL^ht,  not  capable  of  voluntary  transfiT,'^  and 
we  are  therefore  at  a  loss  to  understand  how  it  can  be 
the  subject  of  involuntary  transfer,  through  the  me- 
dium iA"  an  execution  sale,  even  in  tliosc  states  where 
equitable  interests  are  subject  to  execution.  Lands  so 
conveyed  have  nevertheless  been  held  subject  t(»  execu- 
tion in  ^lissouri,  upon  the  ground  that  the  statute  of 
that  state  subjects  to  execution  "all  interests  in  lan<l, 
whether  legal  or  equitable."^  A  conveyance  of  certain 
lands  was  ma<Ie  to  trustees  for  the  benefit  of  the  credi- 
tors of  a  railroad  com[)any.  An  execution  was  subsc- 
(|uently  taken  out  against  the  company,  under  which 
the  lands  were  sold.  But  they  were  held  not  subject 
to  such  execution  and  sale,  because  tlie  company  had  no 
legal  title  to  the  land,  nor  any  equitable  title,  but  a 
mere  right  to  file  a  bill  in  equity  to  compel  the  trus- 
tees to  execute  the  trust.* 

.^'  172  b.  The  Interest  of  a  Co-tenant  is  always  liable, 
by  a  suit  in  partition,  to  bo  changed  from  a  moiety  of 
the  whole  lands  of  the  co-tenancy  to  an  estate  in  sever- 
alty in   some  specific   j)art  thereof,  or  to   be   entirely 

'  E  ImoiuLjon  »•.  Loacli,  5G  (Ja.  401. 

»  CrfK.ker  r.  Bcllangee,  0  Wia.  045;  70  Am.  Dec.  4S9;  M.  &  M.  R.  R.  v.  >L 
t  W.  R.  R.,  20  Wis.  lh:{;  Pomeroya  E(i.  Jur.,  aec.  1275. 
»  Street  r.  Gosfl,  ()'2  .Mo.  220. 
*  Thomaa  r.  Eckard,  88  IlL  59*3. 


499  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  173 

divested  by  a  partition  sale.  These  contingencies  do 
not  make  his  estate  any  the  less  subject  to  execution. 
The  officer  has  no  right  to  levy  upon  the  interest  of  the 
co-tenant  in  any  specific  part  of  the  parcel  levied  upon. 
*'  In  tlie  case  of  an  involuntary  transfer  of  property,  the 
interest  of  the  person  whose  estate  is  to  be  divested  hj 
compulsion  ought  to  be  carefully  considered  and  jeal- 
ously guarded.  If  an  officer  may  lawfully  levy  on 
a  specific  parcel  and  subject  it  to  forced  sale,  he  maj'- 
thereby  sacrifice  the  property  of  the  defendant ;  for  few 
persons  would  be  found  willing  to  bid  for  that  which, 
when  purchased,  consisted  of  a  mere  contingent  interest, 
—  an  interest  which  the  other  co-tenants  are  not  bound 
to  notice,  and  which  might  finally  be  lost  upon  a  partition 
of  the  common  property.  Hence,  the  rule,  supported 
by  a  decided  preponderance  of  the  authorities,  is,  that 
a  levy  and  sale  of  the  debtor's  interest  in  a  specific 
part  of  the  lands  cannot  be  sustained."^  If,  however,  a 
levy  is  made  upon  the  interest  of  a  co-tenant  in  an 
entire  parcel  of  land,  it  will  be  sustained,  although  the 
same  parties  are  also  co-tenants  of  otlier  parcels  of  land, 
all  of  which  might  have  been  united  in  one  suit  for 
partition.  For  the  purposes  of  sale  and  conveyance, 
whether  voluntary  or  involuntary,  each  distinct  parcel 
of  land  is  treated  as  forming  the  basis  of  an  indepen- 
dent co-tenancy.^ 

§173.  Naked  Legal  Title. — While,  as  a  general 
rule,  all  legal  estates  in  land  are  subject  to  execution, 
the  rule  is  not  applied  to  the  detriment  of  persons  for 

'  Freeman  on  r'otonancy  and  Partition,  hcc.  210.  In  Oliio  tho  rule  scoma 
to  Ikj  iliffiTciit.     Trcon  v.  Eincrick,  0  Oliio,  399. 

'Butler  «'.  Roy«,  25  Mich.  .OS;  12  Am.  Hop.  218;  Aycock  v.  Kimbrough,  61 
Tex.  &43.  Rcil  estate  continuen  Buliject  to  execution  iluring  tho  pendency  of 
proceedings  fur  partition.     Urowa  v.  llcufro,  G3  Tox,  COO. 


§  173  KKAL    I'KOPr.rvTV    SUBJECT  TO  EXECUTION.  r.00 

whoso  U'lK-lit  the  U'Ljal  I'statc  may  I)l'  luKl.      Jt  is  only 
NvluMi  the  lioKlor  of  the  \c<xii\   til  1<'  has  soino  honofu'uil 
interest  that  it  eaii  ho  solil  undt  iM-xtciitioii.      ll"  lie  is  a 
mere  trustee,  *>r  il",  tor  any  reason,  he  hnUls  the  hare 
\c\xii\  titU'  for  tlic  hiMU'tit  of  anotlu^r,  an  (.'Xceiition  and 
sak'  au;ainst  him  transfers  no  interest  whatever.'      Hut 
if  the  trustee  holils  for  the  lei^al  l>enelit  of  liimsilf  and 
others,  he  has  a  hemfuial  interest  suhject  to  execution. 
The  legal  title  "always  may  he  hound  to  the  extent 
of  the  henefieial  interest  covered   hy  it."^     The  rule 
respecting  the  exemption  from  execution  against  the 
trustee  of  lands  lield    in   trust  f»r  another  is   not  re- 
stricted to  formal  declarations  of  trust.     It  applies  to 
all  ca.ses  where,  tliougli  the  legal  title  is  in  the  judg- 
ment dehtor,  he  has  no  henelieial  interest  in  the  land. 
This  may  exist  in  tru.sts  arising  fiom  operation  ol'  law, 
as  well  as  in  those  formally  declared  in  some  declara- 
tion or  conveyance.^     AVhere   the  grantee   in  a  deed 
receives  it  for  the  purpose  of  innnediately  conveying 
the  property  to  another,  and  docs  so  convey  it, —  the 
two  deeds  heing  really  parts  of  one  and  tlic  same  trans- 
action,— he   has  never  had   anything  heyond  a   mere 
instantaneous  seisin,  and  his  interest,  like  that  of  the 
holder  of  the  naked  legal  title,  is  not  suhject  to  execu- 
tion.*    So  where  the  vendor  and  vendee  agree  upon  a 
sale  and  purchase  of  land,  and  that,  simultaneously  with 

'  Bostick  r.  Kcizer,  4  J.  J.  Marsh.  597;  20  Am.  Dec.  2.37;  Elliott  r.  Arm- 
Btrong.  2  Blackf.  198;  Baker  v.  Copoiibargcr,  15  111.  10.3;  .08  Atn.  Dec.  GOO; 
Caiiipfkl.l  r.  Jolmnon,  1  Ilalst.  Ch.  245;  Mallc.ry  r.  Clark,  9  Al.b.  Pr.  3.58;  20 
How.  I'r.  4IH;  Manly  r.  Hunt,  1  Ohio,  257;  Hunt  v.  Townslien.l,  31  Mtl.  .3.3i;; 
Houston  r.  Nowlan.i,  7  dill  &  J.  480;  Smith  v.  McCaun,  24  How.  398;  Han- 
cock r.  TitUB.  39  Misrt.  224. 

»  DrjHdalcB  A\>\>c&l.  15  Pa.  St.  457. 

>Thoniajj  r.  Kounedy,  24  I.»wa,  .398;  Lountihurg  r.  Punly,  11  Barb.  4!H). 

♦Chickcring  r.  Lovcjoy,  13  Mass.  51;  Hayn.-a  v.  Jones,  5  Mot.  292;  Web- 
iter  r.  Campbell,  1  Allen,  313;  liarriaou  v.  Andrews,  18  Kan.  535. 


501  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  g  174 

the  execution  of  tlie  conveyance,  a  mortgage  shall  be 
executed  for  the  purchase  price  or  some  part  thereof, 
the  two  instruments,  when  so  executed,  are  regarded 
as  one,  and  there  is  no  intervening  period  between  the 
conveyance  and  the  mortgage  in  which  an  execution, 
lien  or  levy  can  attach  and  obtain  precedence  over  the 
mortoraore/ 

o    o 

§174.  Lands  in  Adverse  Possession. — It  was  for 
some  time  held,  in  Kentucky,  that  a  sale  under  exe- 
cution, of  lands  held  adversely  to  the  defendant,  was 
void;  or  in  other  words,  that  an  involuntary,  hke  a 
voluntary,  transfer  of  real  estate  could  not  be  made 
while  the  owner  was  disseised."  A  different  rule  soon 
afterward  obtained  in  that  state.^  So  far  as  we  have 
been  able  to  ascertain,  lands  may,  in  every  part  of  the 
United  States,  be  taken  in  execution,  notwithstanding 
a  liolding  thereof  adversely  to  the  defendant,  if  he  still 
retains  a  right  of  entry.*  This  seems  to  be  contrary  to 
the  rule  established  under  the  Enijlish  statutes  in  rejrard 
to  extending  lands  under  an  elegit.^  A  claim  of  title 
without  merit  and  without  possession  is  not  subject  to 
execution.  A  sale  against  such  claimant  transfers  no 
interest  and  creates  no  estoppel.  If  he  should  chance 
afterward  to  take  possession,  he  cannot  bo  ejected  under 
the  sheriff's  deed.^ 

'  Scott  r.  Warren,  21  Ca.  408. 

'McConncll  r.  Hrown.  5  T.  IJ.  Mon.  479;  Shephenl  r.  Mclntyrc,  4  J.  J. 
Marsh.  Ill;  f;riflith  r.  Huston,  7  J.  J.  MarHh.  385. 

*  Frizzle  r.  Veach,  1  Dana,  211;  Blanchanl  v.  Taylor,  7  B.  Mon.  G49. 

♦  Jarett  v.  ToinlinHon,  3  VVatti  &  S.  114;  Woodman  v.  Bmlli.sli,  25  Mo.  317; 
.I.ackaon  v.  Varick.  7  Cow.  2:{8;  Kolly  t'.  Morgan,  3  Ycrg.  441;  Niekles  v. 
lla-skinH.  15  Ala.  019;  50  Am.  Dec.  154;  McGill  v.  Doo,  9  lud.  300;  High  v 
NclmH,  14  A\a.  350. 

*  Watiton  on  .Sheriffs,  208. 

•  ilagaman  v.  Jackaon,  1  Wen  J.  502. 


$  17.^  REAL   rUOPKUTY   SU BJKCT  TO  EXECUTION.  M2 

g  176.  Possession  without  Title.  TIk'  men'  ju)s- 
sessioii,  without  title,  is,  no  (l(>ul)t,  our  of  tlio  least 
valiiaKlr  i nto rests  or  estutos  wliieli  can  be  lii-ld  in  lauds. 
It  is,  iieverthele.^^s,  a  leL;al  estate,  recoj^^nized  and  pro- 
teeted  at  law  as  ajj^aiust  all  persons  save  the  true  owner 
of  the  ri»2fht  to  possession.  It  is  prima  facie  evidence 
of  title.  It  is  suhjeet  to  exeeution ;  aiul  its  sale,  under 
proeess  a;j;ainst  the  j)ossessor,  gives  the  [)urel»aser  all 
the  rii^hts  aeeruin<jf  from  the  possession  of  the  defend- 
ant/ toi^ether  with  the  right  to  enter  and  enjoy  the 
possession  to  the  same  e.xtent  as  it  could  have  been 
lawfully  enjoyed  by  the  defendant  in  execution  if  no 
sale  had  been  made.^  From  this  proposition  there  is 
some  di.ssent.  Thus  in  Tennessee  a  mere  right  of 
occupancy  is  not  subject  to  execution.^  So  in  Alabama, 
Missouri,  and  Tennessee,  aa  occupant  of  public  lands 
has  no  interest  which  can  be  sold  under  execution.* 
The  majority  of  the  decisions  in  regard  to  occupants 
of  [lublic  lands  is  the  other  way.  Mere  possessory 
interests  on  public  lands  may,  in  most  of  the  states,  be 
sold  under  execution,  except  where  their  sale  would 
interfere  with  the  laws  of  the  United  States  in  regard 

'  Tlie  piirchaser  at  execution  sale  may  take  the  Banic  hencfit  from  tho  htatute 
of  limitation.H  tliat  the  defeinlaiit  iu  execution  eouM  liave  taken.  Sclicctz  v. 
Fitzwater,  5  Pa.  St.  I'JG;  Overtiuld  r.  Chriatie,  7  Serg.  &  R.  J".'}. 

*  Emerson  r.  Sansome,  41  Cal.  f)5'J;  Thomas  r.  Bowman,  29  111.  4'JG;  30 
m.  94;  Murray  r.  Emmons,  19  N.  H.  483;  Kellogg  v.  Kellogg.  G  liarb.  IIG; 
Jackson  r.  Town,  4  Cow.  599;  ).'>  Am.  Dec.  405;  Talbot  r.  Ciiamberlin,  3  Paige, 
219;  Jack»on  r.  Parker,  9  Cow.  93;  Dickinson  v.  Smith,  25  Barb.  102;  Gray  v. 
Tappan,  Wright,  117;  Miner?*.  Wallace,  10  Ohio,  403;  Turney  i'.  Saunders,  4 
Scam.  527;  French  v.  Carr,  2  Oilm.  G*i4;  Scott «-.  Douglrus.s,  7  Ohio,  228;  Dcau 
V.  Pyncheon,  3  Chaiid.  9;  Bunker  r.  ]iau,\,  19  Wis.  2.j3;  88  Am.  Dec.  GS4; 
Swift  r.  Agues,  .33  Wis.  228 

•  Dougherty  r.  Marcu.se,  3  Head.  .323;  CrutHiiigcr  r.  Catron,  10  Humph.  24. 

♦  Rhea  r.  Hughes,  1  Ala.  219;  .'«  Am.  Dec.  772;  Hatfield  r.  Wallace,  7  Mo. 
112;  Brown  r.  MawHey,  3  Humph.  470.  But  iu  .<\iabama  possesaioa  ia  prima 
facit  subject  to  exocutiou.     McCaskio  v.  Amariue,  12  Ala.  17. 


603  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  176 

to  the  disposal  of  those  lands.  Hence  the  owner  of  a 
mining  claim  on  public  lands  in  California  has  an  in- 
terest liable  to  sale  under  a  writ  against  him.^  ^Vliile 
mere  possession  without  title  is  generally  subject  to 
execution,  it  must  be  remembered  that  possession  may 
be  held  by  vhrtue  of  some  title  which  is  not  subject  to 
execution.  In  such  case,  the  exemption  of  the  title 
usually  carries  with  it  the  exemption  of  the  posses- 
sion. 

§  176.  Interests  in  Government  Lands.  —  Im- 
provements situate  upon  the  public  lands  are  gen- 
erally deemed  subject  to  execution.'^  The  erection  of 
improvements  is  one  of  the  acts  necessar}'^  to  show  the 
good  faith  of  one  who  is  attempting  to  acquire  title 
under  the  homestead  and  pre-emption  laws;  and  their 
continuance  on  the  property  is  not  on!}'  conckicivc  to 
his  comfort,  but  practically  indispensable  to  Ms  resi- 
dence upon  the  property  for  the  Icno^tli  of  time  requisite 
to  his  substantial  compliance  with  these  Liws.  The 
right  to  seize,  sell,  and  remove  his  improvements  must 
impede,  and  perhaps  finall}"-  prevent,  his  cDuiplianco 
with  the  law.  Wliere  such  result  is  likely  to  follow, 
we  doubt  the  propriety  of  the  decisions  holding  such 
improvements  subject  to  execution.  We  liave  said,  in 
the  preceding  section,  that  a  possessory  interest  in  pub- 
lic lands  is  generally  subject  to  execution  sale,  unless 
such  sale  would  interfere  with  the  laws  for  the  disposal 
of  such  lands.  If  the  ])o.s8es.sor  has  acquired  a  right  of 
pre-emption,  the  policy  of  these  laws  will  not  permit 

'  .McKcon  !•.  IJiuhco,  9  Cal.  I'M;  SUto  r.  Moore,  12  Cal.  5C;  Hughc«  v.  Dcv- 
lin,  23t.il.  .V)!. 

»Switz<r  r.  SkilcH,  rjCJilin.  WJ;  4i  Am.  Doc.  T'JTl.  Such  iiiiprovcuiuuta  are 
exempted  \ty  HUtuto  in  Arkaxuitui.     iiualy  f.  Couuur,  40  Ark.  oo2. 


§  177  UE.\L  PROPERTY  SUBJECT  TO  EXECUTION.  M\ 

of  its  transfiT  by  salo  under  ixocution.^  Whrro  lands 
liavi>  lu'rn  [nirchasod  of  the  United  States,  and  payment 
therefor  nKul(\  It  is  v>v\\  settled  that  tlu»  ]>urehas('r 
acquires  thereby  an  inchoate  legal  title.  The  patent, 
%vhen  issued,  takes  eflect,  by  relation,  as  of  tlie  day 
when  the  paynunt  was  made.  The  interest  of  tho 
purchaser  uiay  be  levied  upon  and  sold  before  the  pat- 
ent issues."  Tlic  same  is  true  of  tho  interest  of  the 
owner  of  a  Spanish  grant,  after  its  presentation  to  tho 
commissioners.  The  patent,  when  issued,  relates  back 
to  the  presentation  of  the  petition  for  confirmation.' 
But  in  Georcfia,  a  m'^ant  from  the  state  which  did  not 
become  perfect  until  certain  fees  was  paid  was  held  not 
to  be  subject  to  execution;*  a  like  decision  was  made 
in  Indiana,  in  reference  to  school  lands  purchased  from 
the  state,  and  which  the  state  had  agreed  to  convey  on 
payment  of  the  residue  of  the  purchase  price. 

§  177.  Copyhold  Estates,'  and  all  Other  Tenancies 
at  Will  or  by  sulierance,  are  not  subject  to  execution.^ 

'  Bray  r.  Ragsdale,  53  Mo.  170;  Mooro  v.  Bosse,  43  Cal.  511;  Cravens  r. 
Moore,  01  Mo.  17b.  Lester  r.  White,  44  111.  4G1,  appears  to  intimate  a  con- 
trary opinion,  and  refers  to  Turney  v.  Saunders,  4  Scam.  5.37,  and  French  r. 
Carr,  2  Gilm.  GG4.  These  last  two  cases,  however,  affirm  no  more  than  that 
the  interest  and  improvements  of  an  occupant  on  public  lands  are  subject  to 
execution,  provided  that  title  derived  from  the  government  is  not  affected. 

''  Carroll  v.  Safford,  3  How.  441;  Levi  v.  Thompson,  4  How.  17;  Goodlet  r. 
Smithson,  5  Port.  245;  30  Am.  Dec.  501;  Land  v.  Hopkins,  7  Ala.  115;  Levi  v. 
Thompson,  Morris,  235;  C'avender  »•.  Smith,  5  Iowa,  157;  Jackson  v.  Spink, 
59  111.  404;  Thomas  v.  Marshall,  Hardin,  19;  Martin  v.  Nash,  31  Miss.  324; 
Hamblen  v.  Hamldeii,  33  Miss.  4.">3;  09  Am.  Dec.  358;  Lindsey  v.  Henderson, 
27  Miss.  502;  Jack.son  r.  Williams,  10  Ohio,  09;  Heffly  v.  Hall,  5  Humph.  581; 
Leo  V.  Crossna,  0  Humph.  281. 

'Landes  v.  Perkins,  12  .Mo.  254;  Landes  r.  Brant,  10  How.  348;  Stark  v. 
Bennett,  15  Cal.  301;  Walbridge  v.  Ell.sworth,  44  Cal.  354. 

♦  Garlick  r.  Robinson,  12  Ga.  .340. 
'  Wataon  on  Sheriffs,  208. 

•  WUdy  r.  Bonney,  20  Miss.  35;  Waggoner  v.  Speck,  3  Ohio,  292;  Colvin 
c.  Baker,  2  Barb.  200;  Bigelow  v.  Finch,  11  Barb.  498;  17  Barb.  394. 


505  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  ITS 

The  reason  of  this  rule  is  apparent.  An  occupant  by 
the  perraission  and  at  the  will  of  the  owner  has  no 
estate  which  he  can  transfer  by  a  voluntary  convey- 
ance, and  no  possession  w^iich  can  be  regarded  as  in- 
dependent of  or  adverse  to  that  of  the  owner.  Hence, 
he  has  no  interest  in  the  title,  nor  in  the  possession,  sus- 
ceptible of  transfer  by  execution. 

§  178.  Remainders  and  Reversions.  —  A  vested 
remainder  is  clearly  and  indisputably  subject  to  execu- 
tion at  law  against  the  remainderman.^  The  same  is 
true  of  an  interest  in  reversion  after  an  estate  for  life 
or  for  years.^  A  reversioner  or  remainderman,  though 
not  entitled  to  the  present  possession  of  the  lands,  is 
nevertheless  regarded  as  the  owner  of  an  estate  in 
possession.  The  possession  of  the  tenant  entitled  to 
present  possession  is  regarded  as  the  possession  of  the 
reversioner  or  remainderman.  Hence  an  estate  in 
remainder  or  reversion  may  be  transferred  by  volun- 
tary conveyance,  or  by  extent  under  elegit,  or  by  sale 
under  execution.  If  lands  be  devised  to  A  for  life, 
"and  at  lier  deatli  to  he  equally  divided  between  her 
children,"  each  of  her  children  takes  a  vested  remain- 
der in  the  land,  which,  during  the  life  of  the  mother,  is 
suV>ject  to  execution,  because  the  words  of  the  devise 
show  an  intent  that  each  of  the  children  shall  enjoy  a 
several  interest.'*     But  if  the  devise  had  been  made  to 

•  Wiley  r.  Bridginan,  1  Head,  08;  Humphreys  v.  Humphreys,  1  Yeates, 
427;  Harri.fou  r.  .Maxwell,  liNott  &  McC.  347;  10  Am.  Dec.  Oil;  Doer.  Hazen, 
"  Allen,  87;  I»ckwfX).l  v.  Nyu,  2  Swan,  Slo;  5«  Am.  Due.  73;  Atkins  v.  Beans, 
14  .Maan.  4<)4;  D.^n  v.  HiUn.an,  2  Halst.  180;  Williams  r.  Avery,  14  Mass.  20; 
Kelly  V.  Morgan,  A  Yerg.  .'UT:  Brown  v.  (ialo,  5  N.  li.  4IG. 

'  MorrcU  ?•.  Ii<»l.ert8,  II  Ir.:cl.  424;  IVnniman  r.  HoUi.s,  13  Miuss.  429;  Bur- 
ton V.  Smith,  13  IVt.  404;  Watson  on  yheriila,  208;  Biahop  of  Bhatoln  Caae,  2 
Leon.  11.3. 

*  Davis  V.  (Joforth,  1  Lea,  31. 


1178  REAL   TROPERTY   SUBJECT  TO   EXECUTION.  ROC 

a  lluctuivtinLj  class  iA'  jnTstms,  so  tliat  it  would  have 
Ix'on  uncertain  wlu'tlun'  tin'  jiulu^inont  tlrbtor  would  he 
rt  inoniluT  of  tho  class  at  the  tiTininatiou  of  the  life 
estate,  the  question  would  ho  more  diHicult  and  douht- 
ful.'  "A  eontiii'^ent  reuiaiuder,  eonditioiial  liuiitatioii, 
(»r  executory  devis(.>,  where  the  jMrsou  is  certain,  is 
transmissible  hy  descent.  But  such  interests  are  not 
assignable  at  law,  fur  the  reason  that  in  every  convc}*- 
niice  there  must  be  a  grantor,  a  grantee,  and  a  thing 
granted, — that  is,  ah  estate,  and  such  contingent  in- 
terests do  not  amount  to  an  estate,  but  are  mere  'pos- 
sibilities coupled  with  an  interest.'  It  is  held  in  the 
old  cases  that  such  contingent  interests  cannot  be  de- 
vised, as  a  devise  is  a  species  of  conveyance,  but  by 
the  latter  cases  they  have  been  held  to  be  devisable 
upon  a  wording  of  the  statute  of  devises,  a  devise  be- 
ing in  effect  a  mere  substitution  of  some  person  to  take 
in  place  of  the  heir.  Such  contigent  interests  not  being 
assignable  at  law,  it  follows,  as  a  matter  of  course,  that 
they  cannot  be  sold  under  execution." "  Under  the 
statute  of  Missouri  declaring  that  the  term  "real 
estate"  "shall  include  all  estates  and  interests  in  land, 
and  that  all  real  estate  whereof  a  defendant  shall  be 
seised,  either  in  law  or  equity,  shall  be  subject  to  seiz- 
ure and  sale  under  execution,"  contingent  as  well  as 
vested  remainders  are  subject  to  execution.^  So  in 
New  York  it  seems  to  be  now  settled  that  contingent 
future  interests  are  subject  to  execution.'* 

'  Watoon  v.  Dodd,  08  N.  C.  5:«);  Peim  r,  Spencer,  17  Gratt,  85;  91  Am. 
Dec.  37'»;  Payii  r.  lieal,  4  I>enif>,  405;  Jackson  v.  Middlcton,  r>'2  Barli.  9. 

»  Scott  r.  Scholey,  8  East,  4<J7. 

»  \Vhit«  r.  Mcl'liectcTs,  75  .Mo.  292. 

♦  Sheridan  r.  Huusc.  4  Keyen,  509;  Moore  r.  Littel,  41  N.  Y.  GC;  40  Barb. 
488;  Wotxlgatc  r.  Fk<t,  44  N.  Y.  1.  Those  wlio  may  chance  to  coiniviro  the 
aU>ve  iK:ctian  with  itectioii  354  uf  the  tinit  edition  of  my  work  ou  judgments 
will  seo  that  I  have  abandoned  tho  views  there  expressed. 


607  REAL   PROPERTY  SUBJECT  TO  EXECUTIOX.  §  179 

§  179.  Franchises — A  "  franchise,  being  an  incorpo- 
real hereditament,  cannot,  upon  the  settled  principles  of 
the  common  law,  be  seized  under  a,  fieri  facias."^  Thus 
where  a  turnpike  was  levied  upon  and  sold,  the  court, 
in  determining  that  the  levy  ought  to  be  set  aside, 
said:  "It  has  been  decided  that  every  kind  of  interest 
in  land,  legal  or  equitable,  is  subject  to  execution  in 
this  state.  But  it  does  not  appear  that  the  turnpike 
company  had  any  estate  of  any  kind  in  the  land  over 
which  the  road  runs.  They  were  permitted  to  enter 
upon  the  land  and  make  a  road  under  certain  regula- 
tions, and  when  the  road  was  finished  and  approved  by 
the  governor,  to  take  certain  tolls.  But  there  is  noth- 
ing in  the  incorporating  act  which  authorizes  the  com- 
pany to  transfer  their  right  to  other  persons;  and  such 
transfer  would  certainly  be  inconsistent  with  the  whole 
design  and  object  of  tlic  law.  The  defendants  had  no 
tangible  interest, — nothing  which  could  be  delivered 
by  the  sheriff  to  a  purchaser  under  the  execution. 
There  was  no  rent  or  profit  of  any  kind  issuing  out  of 
land,  —  nothing  but  a  right  to  receive  toll  for  horses, 
carriages,  etc.,  passing  ovpr  the  land."^  A  grant  was 
made  to  a  railroad  company,  their  successors  and 
assigns,  of  the  right  of  way  over  tlie  lands  of  tlic 
grant^jr,  "for  the  purpose  of  running,  erecting,  and  cs- 

'  Oue  r.  Tide  Water  Canal  Co.,  24  How.  263;  Stewart  v.  Joues,  40  Mo.  140; 
Muiiroe  f.  Tliomaa,  5  Cal.  470;  Wiuchoster  and  Lcxingtou  Turiipiko  Co.  r. 
Viiiioiit,  '>  H.  Moil.  1;  Arthur  v.  C.  &  K.  lijiuk,  9  Smedcs  &  M.  4.TI;  48  Am. 
Dec.  719;  Thntiia.s  r.  Arrimtrong,  7  Cal.  280;  Ludlow  v.  Ilurd,  G  Am.  Law. 
Reg.  493;  Hat<licr  v.  T.  W.  &  W.  R.  R.  Co.,  02  III.  477;  Ammant  r.  Tho 
PrcHident  etc..  13  Serg.  fc  U.  210;  !.'>  Am.  Dec.  593;  Seymour?-.  Mil.  &  Cliil. 
Turnpike  Co.,  10  Oliio,  47(i;  Western  I'eniiHylvania  R.  R.  t'.  JoluiHton,  M  Pa. 
St  294. 

*  Ammant  v.  The  Preuidcnt  etc.,  13  Serg.  &  R.  212;  1.')  Am.  Due.  C93; 
Lcc<lom  r.  I'lymoutli  R.  W.  Co.,  5  Watt«  &  H.  2ti.');  WfM)d  v.  Truckoo  Turn- 
pike Co.,  24  Col.  474;  Ludlow  t'.  Hard,  G  Am.  Law  Reg.  493. 


§  179  KKAL   rUOPERTY  SUlUEcT  TO   KXKCUTION.  608 

tiihlislunjjf  tluM'i-on  a  railroail,  with  (lie  rt(jui>i(c  nuiiilxT 
oftnu'ks."  Tin*  cniijpaiiy  nitiTrd  u[»(>n  tlic  oonstruc- 
i'um  of  its  voiul,  but,  iKTomini^  finanfially  fmlturrusscd, 
llimlly  (VJisi'd  all  attompts  to  comiiK'to  the  lurossary 
work.  JudLTiiniit  was  rccovcivd  hy  soino  of  the  con- 
tractors, iiiuKr  which  cxcculioMs  were  issued  aud  levied 
uiioii  "the  ri'jfht  of  way  ti»  the  railroad,  so  I'ar  as  the 
ri;j:ht  of  way  has  heeii  obtained,  and  all  aj»j)ii!tenance8 
l)i'lonu^inj^  to  said  railroatl  company."  Suh.sc(|Uently  a 
sale  was  made  hy  the  Rherilf,  of  the  property  so  levied 
ii[)i>n.  and  in  due  time  a  deifl  therefor  issued.  The 
validity  and  etlect  of  this  sale  and  conveyance  being 
subse(juently  questioned,  tlic  supreme  court  of  the 
I'nited  JSUites  adjudged  them  to  be  void,  because  "no 
fee  in  the  land  was  conveyed,  nor  any  estate  which 
was  capable  of  ])eing  sold  on  execution  on  a  jud|^ment 
at  law  or  separate  from  the  franchise  to  make  and 
own  and  run  a  railroad,"  and  because  what  the  cor- 
poration "acquired  was  merely  an  casement  in  the  land 
to  enable  it  to  discharge  its  function  of  making  and 
maintaining  a  public  highway,  the  fee  of  the  soil 
remaining  in  the  grantor."^ 

While  franchises  have  been  held  not  to  be  subject  to 
execution,  for  the  avowed  reason  that  they  are  intan- 
gible, and  cannot  be  delivered  by  the  sheritt'  to  the  pur- 
chaser, it  seems  to  be  doubtful  whether  this  is  the  true 
—  or  at  all  events,  whether  it  is  the  only — ground 
upon  which  such  exemption  rests.  If  this  were  the 
only  ground,  the  franchise  could  not  operate  for  the  pro- 
tection of  tangible  property  capable  of  delivery  by  the 
officer.  But  it  is  contended  that  the  exemption  of  a 
franchise  extends  to  all  property  essentially  necessary 

>  Eaat  Ala.  R'y  Co.  v.  Doe,  114  U.  S.  .350. 


509  HEAL   PROPERTY   SUBJECT  TO  EXECUTION.  §  179 

to  its  enjoyment,  whether  tangible  or  intangible.^  This 
position  is  sustainable  only  upon  the  theory  that  the 
franchise  is  t^^rauted  for  the  furtherance  of  certain  ob- 
jects  which  the  granting  power  considers  so  important 
that  it  will  neither  tolerate  private  interference  with 
the  franchise,  nor  with  other  property,  without  which 
the  objects  sought  could  not  be  accomplished.  This 
theory,  though  ultimately  supplemented  by  express 
statutory  enactments,  was  very  boldly  declared  in 
Pennsylvania,  in  the  following  language:  "As  to  land 
which  has  been  appropriated  to  corporate  objects,  and 
is  necessarj"  for  the  full  enjoyment  and  exercise  of  any 
franchise  of  the  company,  whether  acquired  by  purchase 
or  by  exercise  of  the  delegated  power  of  eminent  do- 
main, the  company  hold  it  entirely  exempt  from  levy 
and  sale;  and  this  on  no  ground  of  prerogative  or  cor- 
porate immunity,  for  the  company  can  no  more  alien  or 
transfer  such  land  by  their  own  act  than  can  a  creditor 
b}-  legal  process;  but  tlie  exemption  rests  on  the  public 
interests  involved  in  the  corporation.  Though  the  cor- 
poration, in  respect  to  its  capital,  is  private,  yet  it  was 
created  to  accomplish  objects  in  which  the  public  have 
a  direct  interest,  and  its  authority  to  hold  lands  was 
conferred  that  these  objects  might  be  worked  out. 
They  shall  not  be  balked,  therefore,  by  either  the  act 
of  the  company  itself  or  of  its  creditors.  For  the  sake 
of  the   public,  whatever  is  essential   to  the  corporate 

•  nie  Su*niclianna  Canal  Coini)any  r.  Ronham,  9  Watts  &  S.  28;  42  Am. 
Dec.  .315,  in  wliidi  case  tlio  Iioiumj  (H.TUi)icil  \>y  tht;  colkctor  of  IoHh  on  a  canal 
wall  held  to  Ik;  not  Huliject  to  sale  under  firri  J'ariiA.  (luo  v.  Tido  Water 
Canal  Co.,  21  How.  2G:J,  in  which  thu  nalo  of  a  house  and  lot,  a  wharf,  ami 
■undry  canjil  locka  wa*  enjoined.  Plymouth  U.  II.  Co.  r.  Colwell,  H9  Pa.  St. 
337;  Youngiiian  v.  K.  K.  Co.,  CT)  Pa.  St.  278;  hut  hy  act  of  April  7,  )S70, 
the  fraachiiH.li  and  i>roi»crty  of  coriKjrationa  niay  Iks  sold  on  execution;  Pliila- 
dclphia  &  li.  C.  K.  K.  Co.'s  Appeal,  70  Pa.  St.  355. 


g  17l>  REAL   PROPKRTY   SURTErr  TO  EXECUTION.  510 

fuiu'tioiis  n'\:\\\  lio  n-taiiUMl  liy  tlic  corporal  ion.  The 
only  iviiuhIv  wliicli  the  law  allows  to  ciiditois  aj^ainst 
property  s<>  ln'M  is  sequestration.  And  that  rcm- 
eily  is  consistent  with  corporate  existence,  whilst  a 
]iower  to  alien,  or  liahility  to  levy  and  sale  under  exe- 
cution, would  hani^  the  existence  of  the  corporaticMi  on 
the  caprices  of  the  nianaLCers  or  on  the  nicrcy  of  its 
creditors.  For  tho  corporation  wonld  cease  to  exist 
for  the  purposes  of  its  institution  when  its  means  of 
subsistence  were  <xone.  It  uiiofht  still  have  a  name  to 
live,  but  it  could  only  be  a  life  in  name.  A  railroad 
company  could  scarcely  accomplish  the  end  of  its  l)(>in<j^ 
after  the  q-round  on  which  its  rails  rest  had  been  sokl  to 
a  strauG^er."^  Carry  this  opinion  to  its  lo^rical  conclu- 
sion, and  all  property  held  by  a  corporation  and  neces- 
sary to  enable  it  to  discharge  its  duties  to  the  public, 
or  to  effectuate  the  objects  of  its  incorporation,  must  be 
adjudi^ed  not  subject  to  execution.  A  railroad  company 
can  no  more  discharge  its  public  duties  without  locomo- 
tives and  passenger  and  freight  cars  than  it  can  witli- 
out  a  franchise,  a  track,  or  a  depot ;  and  yet  the  existence 
of  these  great  corporations,  with  all  the  ])ro[)erty,  real 
and  personal,  essential,  or  at  least  "highly  beneficial,  to 
their  successful  operation,  entirely  exempt  from  execu- 
tion at  law,  would  be  insufferable.  So  coinpivlionsive 
an  exemi)tion  will  not  now  be  sustained.  So  far  as  any 
general  rule  can  be  fornmlated  upon  the  suljject,  it  is 
this:  that  property  of  a  corporation  is  not  subject  to 
execution  which  is  not  subject  to  voluntary  transfer  by 
the  corporation.  The  mere  right  or  franchise  to  be  a 
corporation  is  never,  in  the  absence  of  s{»ecial  statutory 
authority,  subject  to  sale,  whether  voluntary  or  under 

>  Plymouth  K.  II.  Co.  r.  Col  well,  39  Pa.  St.  337;  8U  Am.  Doc.  628, 


511  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  179 

execution.^  So  the  franchise  to  build  a  railroad  is  so 
inseparably  connected  with  the  purposes  of  a  railway 
corporation  as  also  to  be  exempt  from  execution. 

With  re.spect  to  the  property  of  a  railway,  or  other 
corporation  employed  b}^  it  in  its  business,  a  distinc- 
tion has  been  made  between  the  road  and  structures 
immediately  connected  therewith  and  appliances  after- 
wards obtained  for  the  purpose  of  operating  the  road. 
The  interest  or  right  of  way  in  the  land  required  for 
the  construction  of  the  road,  the  timber  and  iron  of 
the  track,  and  the  depots,  and  structures  for  the  supply 
of  water,  and  the  like,  are  said  to  be  a  part  of  the  realty ; 
and  "the  road  is  not  regarded  as  so  constructed  and 
prepared  for  use  until  such  things  are  affixed.  But 
v.hen  the  road  is  thus  constructed  and  ready  for  use, 
other  things  are  requisite  for  that  use, — locomotives, 
cars,  and  other  articles  and  materials,  some  of  which 
are  consumed  in  the  use,  and  the  supply  has  to  be  from 
time  to  time  renewed.  Now,  we  think  there  is  a  mani- 
fest distinction  between  the  road,  as  constructed  for  use, 
and  the  various  things  employed  in  that  use,  and  the 
latter  cannot  with  propriety  be  regarded  as  constitut- 
ing a  part  of  the  real  estate,  but  are  the  personal 
property  of  the  corporation.  We  have  no  hesitation 
in  cominsr  to  the  conclusion  that  what  we  have  de- 
scribed  as  the  personal  property  of  the  corporation, 
emi)lo\'('d  in  the  use  of  its  road  and  franchise,  is  liable 
for  the  payment  of  its  debts.  We  think  the  line  can 
be  clearly  drawn  between  the  interest  in  real  estate, 

'  Commonwoalth  v.  Smith,  10  Allen,  448;  87  Am.  Doc.  G7'2;  Hall  r.  Sulli- 
vanjt.  U..  21  Law  U,.p.  i:{8;  Pierco  v.  Emery,  32  N.  H.  484;  2  llc.lf.  K'y  Cos. 
G.TI;  lijthanU  r.  Morrimack  Co.,  4t  N.  H.  127;  Koiinol»oc  K.  11.  v.  Portland 
K.  U..  r,'J  .M<-.  9;  Cliirko  r.  Omaha  R.  R.,  4  Nob.  458;  ID  Am.  R'y  lUp.  423; 
State  r.  Conooliilatcd  Coal  Co.,  4G  Md.  1. 


§179  REAL  TROrKUTY   SURIE(T  TO   KXECUTION.  r>\'2 

ami  tho  traiu'liiso  cDnnoctvd  tlRTi'wiLli,  aiul  {\\c  iiiovuhlc 
tlunixs  oomuH-toil  witli  tho  IVanchiso.  'I'lif  distinction 
apjn'urs  to  us  to  In-  as  phiiii  as  that  lictwi'iu  a  lanu  and 
tho  imploini'nts  aiul  stock  wliich  the  proper  use  ul"  tlio 
tarin  uci-essiirily  n'(juires.  There  are  instances  wliicli 
niav  he  put  still  more  analojj^ous.  Take,  for  example,  a 
ferry  franchise.  It  is  connected  with  real  estate;  it  is 
itself  an  incorporeal  hereditament,  and  therefore  real 
estate.  The  use  of  this  franchi.se  recjuires  boats  and 
other  movahle  appliances,  liut  these,  when  employed 
in  the  use  of  the  ferry  franchise,  do  not  thereby  become 
a  part  of  the  real  estate;  they  are  the  personal  piop- 
erty  t>f  the  owner  of  the  ferry  franchise,  or,  it  may  be, 
of  some  person  to  wlK>m  the  ferry  franchise  has  been 
demised  for  a  term  of  years." '  These  views  respecting 
the  separability  of  the  personal  property  of  a  corpora- 
tion from  its  franchises  have  met  with  general  ac(juies- 
cence.  Such  personal  property  will  not  be  regarded  as 
a  part  of  the  real  estate  or  Iranchise  of  the  cor[)oration 
so  as  to  withdraw  it  from  execution,  though  its  use,  or 
the  use  of  other  property  of  like  character,  is  required 
for  the  successful  operation  of  the  road.^  An  execu- 
tion based  upon  a  decree  of  foreclosure  stands  upon  a 
somewhat  different  footing  from  an  ordinary  execution 
at  law.  So  far  as  the  principles  of  public  policy  are 
concerned,  there  can  be  no  difference.  The  results  to 
the  public  Would  not  be  less  di.sastrous  in  the  one  ca.se 
tlian  in  the  other.  But  great  public  im[>rovements 
are  rarely  constructed  without  resort  being  made  to 
the  borrowing  of  money  in  some  form  ;  and  this  money 

•  Coo  r.  ColumbuB,  P.  4  I.  IC.  K..  10  Ohio  St.  372;  7.'»  Am.  Dec.  522. 

*  Pierce  r.  Emery,  .TJ  N.  H.  4>>4;  Saiigatnori  &  M.  U'y  Co.  r.  Mfirgaii  County, 
14  III.  103;  50  Am.  Dec.  407;  Boatou,  C.  i  M.  K.  R.  i-.  Gilmore,  37  N.  II. 
410;  72  Am.  Dec.  336. 


513  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §17? 

is  generally  secured  by  mortgage  or  trust  deed,  either 
of  wliich  form  of  security  would  be  greatly  impaired  in 
efficiency  and  value  if  disconnected  from  the  rioht  to 
sell  the  franchises  of  the  corporation  and  all  the  prop- 
erty incidental  thereto.  The  right  to  mortgage  the 
franchises  of  the  corporation  is  gcnerall}'  conferred  by 
statute.  Where  this  is  so,  there  can  be  no  question  of 
the  propriety  of  a  decree  ordering  their  sale,  and  no 
doubt  that  the  sale,  if  regularly  made,  will  transfer  the 
title  to  all  the  property  mortgaged.  In  some  of  the 
states,  independently  of  statutory  authority,  a  railway 
corporation  is  held  to  have  power  to  mortgage  its  road, 
and  to  include  in  such  mortsrao-c  the  franchise  or  ricjht 
to  construct  and  maintain  such  road.^ 

In  North  Carolina  the  property  of  a  corporation 
may  be  seized  and  sold  under  execution,  tliough  by 
such  sale  the  corporation  will  be  deprived  of  the  means 
of  enjoying  its  franchise;^  and  the  decisions  in 
Mississippi  and  Missouri  tend  strongly  toward  the 
same  conclusion.^  But,  conceding  that  the  property 
of  a  coq)oration  necessary  to  the  exercise  of  its  fran- 
chise is  exempt  from  execution,  this  exemption  cannot 
continue  after  the  exercise  of  the  franchise  has  been 
abandoned.  Hence  if  a  railroad  company  has  ceased 
to  use  a  portion  of  its  road  for  public  purposes,  and  is 
proceeding  to  take  up  and  carry  away  the  rails,  the 
portion  so  altandoned   is  subject  to  levy  under  execu- 

"  Bar«l«town  &  L.  li.  11.  c  .Metc.ilfe,  4  Mut.  (Ky.)  l'.)'J;  81  Am.  Den.  CA]. 
The  contrary  doctrino  is  better  BUi)i»ortf»l  l)y  tlio  authnritica.  Richar<l«on  r. 
Sibley,  II  Allen,  C.'>;  87  Am.  Dec.  700;  Tippecanoe  Co.  r.  Lafayette  R.  R.  Co., 
60  In<l.  97;   llhrman  ,:  Insurance  Co.,  SiS  Oliio  .St.  341. 

»  SUtc  r.  Rivon.  '}  Ircl.  .KW. 

»  Arthur  r.  C.  A  M.  Hmk.  9  Smo.lcH  k  M.  431;  48  Am.  Doc.  710;  Stewart 
r.  Jon.•^  40  .Mo.  140.  See  Railrojul  Co.  r.  .laiiicH,  0  Wall.  7^);  CiHS  ?-.  C.  P.  A 
I.  R.  R.  Oi.,  10  Ohio  St.  872;  2o  Am.  Dec.  518;  Covington  Co.  r.  Shepard.  21 
How.  112. 

Vol.  I.— 83 


§  180  RE.VL  PROPERTY  SUBJECT  TO  EXECUTION.  514 

til)!!.'  In  most  oi'  (ho  states  .statutes  liave  been  cn- 
ueteil  iiiuler  whieh  frnneliises  and  all  property  con- 
nected tlu'rewith  may  l»r  macK'  a\  ailiMc  in  satisfaction 
t)f  judLiinents  recovered  aj^ainst  their  owners.  Wc 
shall  make  no  attempt  here  toward  eompilinj^  these 
statutes,  nor  presentinjj^  the  decisions  which  have  heen 
made  thereunder,  but  shall  turn  the  reader  lor  further 
information  to  the  statutory  compilations  of  his  own 
jKirticular  state.  Before  doing  so,  however,  we  stop 
to  remark  that  the  general  principle  seems  to  prevail, 
that  as  these  statutes  are  in  derogation  of  the  common 
law,  their  provisions  must  be  strictly  followed  in  order 
to  impart  validity  to  any  attempted  sale  or  seques- 
tration."^ 

§  180.  The  Effect  of  the  Sale  of  Franchise  and 
Property  of  a  Corporation.  —  As  the  power  to  trans- 
fer a  i ranch ise  under  execution  depends  upon  statutory 
provisions  enacted  in  the  state  wherein  the  transfer  is 
made,  so  the  effect  of  the  transfer  is  necessarily  de- 
pendent upon  the  same  provisions.  In  this  country, 
franchises  of  any  considerable  importance  are  usually 
exercised  by  corporations.  In  many  cases  it  seems 
difficult  to  separate  the  franchise  from  the  corporate 
powers  and  privileges  in  connection  with  which  it  has 
been  enjoyed.  And  yet  it  seems  to  be  settled  tliat 
the  sale  of  the  franchise  and  property  of  a  corporation 
has  no  operation  to  destroy  the  corporate  existence, 
nor  to  transfer  the  general  powers  nor  obligations  of 
the  corporation.  The  few  decisions  which  have  been 
made  in  regard  to  the  effect  of  the  compulsory  sale  of 

•  Benedict  r.  Heincberg,  43  Vt.  2.'?1. 

*  James  »•.  Plank  Road  Co.,  8  Mich.  91;  Ammant  r.  The  President  etc.,  13 
Serg.  &  R.  210;  15  Am.  Dec.  593. 


51J  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  ISO 

franchises,  so  far  as  we  are  aware,  have  arisen  out 
of  sales  made  under  mortgages  given  b}''  raih'oad 
corporations.  In  Eldridge  v.  Smith, ^  Chief  Justice 
Poland,  determining  the  ejffect  of  such  a  sale,  said: 
"When  a  railroad  company  mortgages  its  road  and 
appurtenances  as  a  security  for  debt,  and  also  its  fran- 
chise, it  is  not  to  be  understood  as  conveying  its  cor- 
porate existence  or  its  general  corporate  powers,  but 
only  the  franchise  necessary  to  make  the  conveyance 
productive  and  beneficial  to  the  grantees,  to  maintain 
and  support,  manage  and  operate,  the  railroad,  and 
receive  the  tolls  and  profits  thereof  for  their  own  bene- 
fit." In  the  case  of  Atkinson  v.  Marietta  and  Cincin- 
nati Railroad  Company,  as  reorganized,"  the  company 
sought  to  appropriate  certain  lands  to  its  use  for  a  rail- 
road tract.  It  was  resisted  on  the  ground,  among 
otiiers,  that  it  had  no  such  corporate  existence,  under 
tiio  laws  of  the  state,  as  authorized  it  to  exercise  the 
right  of  eminent  domain.  The  company  showed  that 
the  railroad  corporation,  as  originall}'  organized,  had 
mortgaged  its  property  and  franchises;  that  a  sale  had 
been  made  under  such  mortgage,  and  also  under  the 
provisions  of  a  special  act  of  the  legislature;  that  this 
act  undertook  to  confer  on  the  purchasers  all  the  rights 
and  powers  embraced  in  the  charter  of  the  original 
corporation ;  and  that  the  present  company  had  re- 
organized under  the  provisions  of  this  special  act.  On 
the  other  side,  it  was  insisted  that  this  act  was  repug- 
nant to  the  constitution  of  the  state,  which  prohib- 
ited the  passage  of  '^special  acts  conferring  corporate 
powers."  The  counsel  for  the  company,  to  avoid  the 
force  of  this  objection,  contended  that  the  act,  instead 

'  34  Vt,  490.  » 15  Ohio  St.  21. 


f  ISO  RKAL  rUOPF.RT\'   SURIErT  TO  KXEri"r!ON'.  MO 

of  I'onlV'riiiig  (•ur|U)niU'  |)o\vi'rs,  hiuiply  (linliiit'd   "tlio 
elVoct  i>f  a  KiK'  of  the   road  ami   fiaiicliisrs  under  tlio 
doeree."      Jn  diseussin<jf  this  point,  the  com  t  said:   "To 
enabl«^  us  to  see  eleurly  what  the  act  has  attempted  to 
neeoniplish,  and  what  it  nuist  have  elhctually  aceoiu- 
J>hsht'd.  to  invest  the  tlehnchmt  with  the  capacities  and 
]>t)Wrrs  lA'  the  old  charter,  it  may  he  well   to  consitler 
what  would    have   Ixcn   their  ])o.sition  if  this  act  had 
not    been    passed.     Tliey  were   mortu;age   cretJitors   of 
the  old  company,  havin;^  a  decree  for  the  sale  of  its 
road.      If,  without  this  act,  they  Jiad   hecome  the  pur- 
chaiiers  of  the  })roperty,   they   w<»uld  also   have  been 
invested  with  the  franchise  of  maintaining,  operating, 
and  making  profit  from  the  use  of  the  road,  accoiding 
to  the  grant  made  to  that  company.      But  neither  their 
mortgage  nor  decree  gave  them  any  riglit  to  or  lien 
upon  the  corporate  existence  of  the  Marietta  and  Cin- 
cinnati company;  nor  could  any  sale  under  the  decree 
have   divested    the    stockholders  of  that    company  of 
this  franchise,  or  have  invested  the  purchasers  with  a 
corporate  existence.     The  capacity  to  have  perpetual 
succession  under  a  special   name  and   in  an  artificial 
form,  to  tiike  and  grant  property,  contract  obligations, 
and  sue  and  be  sued  by  its  corporate  name  as  an  indi- 
vidual,  Were    franchises    belonging   to    the    individual 
stockholders  of  that  company,  inalienable  in  the  hands 
of  the  artificial   being  thus  created,  and   without  any 
power  *to  transfer  its  own  existence  into  another  body; 
nor  could  it  enable  natural  j)erson8  to  act  in  its  name, 
save  as  its  agents,  or  as  members  of  the  corporation 
acting  in  conformity  to  the  modes  re(juired  or  allowed 
by  its  charter.'     Although   it  may  be  divested  of  its 
projjcrty,  together  with  the  franchise  of  oi)erating  and 


517  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  181 

making  profit  from  the  use  of  the  road,  its  corporate 
existence  sur\aves  the  wreck,  and  endures  until  the 
stite  sees  fit  to  terminate  it  by  a  proper  proceeding. 
It  is  hardly  necessary  to  add  that  a  delegation  of  the 
power  of  eminent  domain  to  a  corporation,  as  a  means 
to  carry  into  effect  the  grant  of  its  franchises,  cannot 
be  made  the  subject  of  either  grant  or  sale."  ^  Where 
the  purchasers,  under  a  mortgage  sale,  of  the  property 
and  franchises  of  a  railroad  corporation,  are  authorized, 
by  stiitute,  "to  organize  anew,  and  be  invested  witli  all 
the  rights  and  powers  of  the  old  company  in  the 
management  of  the  road  and  business,"  and  they  do  so 
organize,  the  reorganized  corporation  is  not  liable  for 
any  of  the  debts  of  the  old  corporation.^ 

§  181.  The  Interest  of  a  Vendor  who  has  not  yet 
conveyed  the  title  to  his  vendee  may  be  sought  to  be 
made  availal)le  under  a  writ  against  him,  either  when 
he  has  given  possession  and  received  full  payment  for 
the  property,  and  has,  therefore,  no  beneficial  interest 
therein,  or  when,  though  under  a  binding  contract  to 
sell  and  convey,  full  payment  has  not  been  made,  and 
he  yet  retains  the  legal  title  as  security  for  the  payment 
of  his  purcha.se-money.  In  either  case,  it  is  quite  clear 
that  if  tlie  property  is  subject  to  execution  at  all,  the 
title  acquired  \)y  tlie  purchaser  at  the  execution  sale 
witli  notice  of  the  prior  contract  of  sale  must  be  sub- 
ordinate thereto;  but  it  may  be  insisted  that  as  there 
remains  a  legal  estate  in  the  vendor,  it  passes  by  the 
execution  sale,  leaving  the  vendee  to  assert  his  rights 
by  some  equitable  i)roceeding.     The  prevailing  opinion, 

«  AtkiniKm  v.  M.  &  C.  R.  R.  Co.,  Uy  Ohio  St.  35. 

»  Vil  w  r.  M.  A  P.  R.  W.  Co.,  )■;  Win.  497;  Smith  v.  C.  A  N.  W.  R.  R. 
Co.,  18  Wm.  17;  8towart'»  Appeal,  T2  I 'a.  St.  291 


IISI  RKAL   rROPKRTY   SURTKCT  TO   EXECUTTON.  518 

lu)Wi>vor.  is,  that  wluMf  the  vtiidor  n  tains  no  l»tMi(>fic'ial 
interest,  the  |»rnj>iiiy  is  not  suhjoct  to  cxtcution  aj^ainst 
liitn.  and  a  piuvlmsor  with  notiro,  actual  or  construotivo, 
tlots  not  iVtMi  oht^iin  the  Icj^al  titlo,  or  at  least,  that  ho 
may  bo  dotoatod  on  his  hringin;^  an  action  at  law,  al- 
though the  vendee  interposes  no  eciuitahlo  defense/  A 
like  result  follows  where,  though  the  purchase  price  has 
not  been  fully  paid,  the  vendor,  bet'oro  the  levy  of  the  ex- 
ecution against  iiini,  lias  tran-:ferred  the  notes  given  him 
for  the  un})ai(l  purchase-money.'  If  the  vendor  has  re- 
ceived partial  payment,  and  retains  the  title  as  security 
for  the  balance,  the  case  seems,  on  principle,  to  be  essen- 
tially dillbrent.  For,  in  that  event,  ho  has  both  the 
legal  title  and  a  benetieial  interest  therein.  According 
to  the  better  opinion,  his  interest  may  be  taken  in  exe- 
cution, subject  to  the  rights  of  the  vendee,  under  the 
contract  of  sale.^  The  rule  in  Mississippi  and  North 
Carolina  is  otherwise.*  A  contract  for  the  sale  of  real 
estate,  followed  by  a  partial  j^ayment,  has,  in  those 
states,  the  eftect  of  entirely  withdrawing  the  property 
from  the  reach  of  an  execution  at  law,  whether  against 
the  vendee  or  against  the  vendor.  A  judgment  cred- 
itor of  the  vendor  has  only  two  modes  open  to  liim: 
"either  to  have  sequestered  the  debt  by  summons  in 
garnishment;  or  in  have  brought  a  bill  in  chancery,  and 
asked  that  the  etpiity  of  the  vendor  upon  tin.'  land,  as 
security  for  the  del)t  due  him,  might  bo  applied  to  the 
satisfaction  of  the  judgment."'^ 

»  Cutting  r.  Pike,  '21  N.  H.  347;  I'aramoro  v.  Persons,  57  Ga.  473. 

•Catlin  r.  Beuiic-tt,  47  Tex.  l(i.");  Neul  v.  .Muriihy,  CO  (Ja.  388. 

•Riley  r.  Million,  4  J.  J.  Marsh.  39.j;  PattirMoii's  EhUIc,  25  Pa.  St.  71; 
Hardee  r.  McMichacl,  68  Ga.  C78;  Bell  v.  McDuflio,  71  Ga.  204;  Doak  r.  Kuii- 
yan,  33  Mich.  75. 

♦  Money  r.  DoriK-y,  7  Smeden  tc,  M.  15;  Tally  r.  Rci.l,  72  N.  C.  33G;  Folgei 
r.  liowlcs.  72  N.  C.  303. 

*  Taylor  r.  Lowcodtein,  50  Mist.  278;  Chisbolm  v.  Andrews,  57  Misa.  630. 


519  REAL  PROPERTY  SUBJECT  TO  EXECTJTIOX.  §182 

182.  The  Interest  of  Defendant  after  a  Sale  under 
Execution. — The  owner  of  real  estate  which  has  been 
sold  or  extended  under  execution  has,  in  many  of  the 
United  States,  the  right  to  redeem  the  same  from  such 
sale  within  the  time  and  upon  the  terms  prescribed  by 
statute.  He  has,  pending  the  time  for  the  redemp- 
tion, the  possession  of  the  property,  and  a  beneficial  as 
well  as  legal  estate  therein.  His  estate  is  subject  to 
his  voluntary  disposition,  and  we  perceive  no  reason 
why  it  ought  not  to  be  susceptible  of  levy  and  sale 
under  execution  against  him.  That  it  is  so  subject  is 
now  affirmed  by  a  preponderance  of  the  authorities,^ 
but  is  denied  in  at  least  one  state, ^  on  the  ground 
that  to  permit  it  to  be  sold  under  a  second  writ  would 
frustrate  the  humane  objects  ot  the  statute  in  giving 
the  debtor  a  time  in  which  he  may  rescue  his  property 
from  the  sacrifice  likely  to  attend  an  absolute,  involun- 
tary sale.  Wliile  the  statute  was  doubtless  designed 
to  operate  beneficially  to  the  debtor,  it  was  not  in- 
tended to  do  so  at  the  expense  of  his  other  creditors, 
and  they  are  not  to  be  deprived  of  an  opportunity  to 
satisfy  their  demands  merely  because  the  j)ri)jK'rty  has 
been  sold  subject  to  redemption,  and  probably  for  a 
sum  representing  but  a  small  part  of  its  value.  Per- 
haps the  chir-f  value  to  the  judgment  debtor  of  his 
right  to  redeem  is,  that  it  coerces  the  judgment  credi- 
tor into  bidding  a  fair  price  for  the  property,  lest 
it  should  be  redeemed  by  the  defendant  or  his  assignee, 
and  the  creditor's  purchase  thereby  defeated,  without 
his  judgment  being  satisfied  or  the  full  value  of  the 

'  Curtis  r.  MiIUpI,  14  Iowa,  128;  81  Am.  Doc.  4G'J;  ikrii.l.pii  r.  Pickanl, 
5  Lea.  702. 

»  UuhucII  r.  Fal.yan,  »4  N.  H.  218;  BarucH  r.  Cavanagli,  f>:<  Iowa.  2<.);  Mfrry 
r.  Boatwick,  1.1  III.  X)H;  54  Am.  Dec.  4.14;  Watson  v.  R<.i«8ig.  24  111.  281;  70 
Am.  Dec.  74G;  liowinan  v.  People,  82  IlL  240;  25  Am.  Ilcp.  'MO. 


§183  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  620 

land  roali/AHl.  Tliis  ri;j;lit  woulil  -be  very  seriously 
imporiloil.  and  tlio  dohtor  needlessly  vexed  and  exposed 
to  ruiniais  eosts,  if  the  ercditor  could  make  sueeessivo 
levies  and  sales  of  the  same  land  under  the  same  judg- 
ment. Tlie  creditor  nuu^ht  pureliase  the  land  at  a 
wholly  inadeciuate  price,  and  ilien,  undiM-  another  exe- 
cution issued  lor  the  t^ame  debt,  levy  on  the  same  land, 
and  LCreatly  embarrass  the  debtor  in  his  attempts  to 
exercise  his  right  of  redemption.  In  the  absence  of 
any  statutory  jirovision  on  the  subject,  the  courts 
whose  attention  has  been  directed  to  this  question 
have  therefore  determined  that  a  sale  of  land  under  a 
judgment  withdraws  it  from  any  further  devy  and  sale 
under  the  same  judgment  pending  the  time  allowed 
for  redemption,  unless  in  the  mean  time  the  debtor 
should  acquire  some  additional  title.^  In  England, 
when  an  extent  has  been  perfected  under  an  elegit,  the 
defendant  retains  no  interest  which  can  bo  extended 
under  a  subsequent  elegit^  If  lands  be  sold  for  a  sum 
not  sufficient  to  satisfy  the  judgment,  and  are  there- 
after redeemed  by  the  defendant,  they  may  be  resold 
to  pay  the  balance  due  on  the  same  judgment.^ 

§  183.  Heirs  and  Devisees.  —  Upon  the  death  of  a 
person  seised  of  lands,  his  estate  passes,  by  operation 
of  law,  to  his  heirs  or  devisees.  It  is  true  that  such 
estate  is  liable  to  administration,  and  may  be  made 
answerable  for  the  debts  of  the  deceased,  if  his  personal 
property  should  prove  inadequate  to  their  satisfaction. 
The  title,  however,  passes  to  the  heirs  or  devisees, 
subject  to  a  lien  in  favor  of  the  creditors.     Each  of  the 

»  Hardin  v.  White,  G3  Iowa,  G33;  Peebles  v.  Pate,  90  N.  C.  348. 
'  Carter  r.  Hughea,  27  L.  .J.  Ex.  225;  2  Hurl.  &  N.  7U. 
»  Wocxl  t'.  Colvin,  6  Hill,  228;  Titua  v.  Lewis,  3  Barb.  70. 


521  REAL  PROPERTY   SUBJECT  TO  EXECUTION.  §183 

heirs  has,  therefore,  a  legal  estate,  subject  to  be  alien- 
ated or  devised  by  him,  and  also  subject  to  execution 
against  him,  as  other  beneficial  legal  estates  are.  The 
purchaser,  whether  at  a  voluntary  or  a  compulsory  sale, 
acquires  the  estate  of  the  heir,  subject  to  the  rights  of 
tlie  creditors.^  In  Georc^ia  and  Louisiana  it  has  been 
held  that  when  the  heirs  are  entitled  to  several  parcels 
of  land,  a  specific  parcel  cannot,  before  partition,  be 
sold  on  execution  ao'ainst  a  sino^le  heir.  The  reason 
urged  in  support  of  this  decision  is,  that  such  a  sale  is 
an  attempt  to  interfere  with  the  right  of  the  other 
heirs  to  partition.^  Later  cases  in  Georgia  show  the 
inclination  of  the  court  to  question,  and  if  necessary 
to  deny,  the  soundness  of  the  earlier  decisions.  Refer- 
ring to  the  case  of  Clarke  v.  Harker,  just  cited,  and  the 
reasons  there  given,  Judge  Bkckley,  in  delivering  the 
opinion  of  the  court  in  Wilkinson  v.  Chew,^  remarked : 
"I  doubt  whether  those  reasons  are  not  open  to  grave 
criticism.  Distribution  in  kind  is  but  partition;  and  if 
each  distributee  can  sell  privately  as  much  or  as  little 
of  his  undivided  interest  as  he  looses,  it  is  difficult  to 
see  why  it  may  not  be  levied  upon  and  sold  by  the 

'  Proctor  V.  Nowliall,  17  Mass.  81;  Douglass  v.  Massie,  16  Ohio,  271;  Block 
V.  Steel,  1  Bail.  307;  Vanayckle  r.  Richardson,  13  111.  171;  Dearmond  r.  Court- 
ney, 12  La.  Ann.  251;  Noble  v.  Ventes,  3  Rob.  (La.)  153;  Mayo  v.  Stroud,  12 
Pvob.  (La.)  105.  If  judgment  is  entered  against  an  heiress,  in  consequence  of 
a  warranty  inafJe  l)y  her  ancestor,  for  a  certain  sum,  "to  the  extent  of  her 
interest  i:i  the  estate  of  her  father,"  e.xccution  cannot  be  levied  upon  her 
property  pending  the  settlement  of  the  estate,  for,  prior  to  such  settlement,  it 
cannot  bo  known  what  i.s  the  extent  of  her  interest  in  the  estate  of  her  father. 
In  other  wor'l.s,  such  judgnient  is  iiuletiuite  and  meaningless,  and  not  until 
given  precision  by  the  final  settlement  of  the  estate  is  it  tlie  proper  basis  for 
an  execution  or  levy.      Mf)rgan  v.  L;ibaniie,  32  La.  Ann.  1300. 

'Clarke  r.  Harker,  4S  ('.a..  5%;  Mayo  v.  Strourl,  J2  Rob.  (La.)  105.  See 
Freeman  on  Cotenancy  and  Partition,  sees.  190-208;  also  sec.  210.  Butler  w. 
Reyes,  12  Am.  Rep.  218;  25  MicJj.  53. 

»  54  Ga.  002;  see  also  Du  Boso  v.  Cleghorn,  05  Ga.  302. 


§  1S3  REAL  rROPERTY  SUBJECT  TO  EXECUTION.  622 

shorilV.  Tlu'  jninliasrr.  in  citlicr  case,  would  simply 
luvupv  tlir  i>l;u'o,  qtioud  hoc,  of  tlie  distributoo  or  ten- 
ant in  i'oiniu«>n.  l'p<»!j  i>rinc-ii>lcMis  wt'U  as  autliorit}'', 
sul>jooti(>n  ti»  livy  and  saK;  should  rest  on  two  (jues- 
tions  only:  Is  there  a  vested  interest?  and  is  it  so 
definite  as  to  he  susceptible  of  description  in  terms  of 
legal  certainty?  What  equities  may  arise  afterwards 
between  co-teuants  or  eo-distributees  may  be  left  to 
the  general  resources  of  remedial  jurisj)rudenee."  An 
executory  devise  is,  even  while  the  first  devisee  in  feo 
is  still  living,  an  existing  interest,  and  not  a  bare  possi- 
bility. "It  is  entirely  certain  that  such  an  interest 
may  be  transferred  by  assignment,  even  at  law,  and 
consequently  that  it  may  be  sold  by  execution.'  The 
personal  property  of  a  decedent  docs  not,  like  his  real 
estate,  vest  immediately  upon  his  death  in  his  heir  at 
law.  It  goes  to  the  administrator  or  executor;  and 
whether  the  title  vests  in  the  executor  or  the  heir,  the 
jxissession  of  the  property  passes  into  the  custody  of 
the  executor  as  an  oiKcer  of  tlie  law,  and  while  it 
remains  in  the  custody^  of  the  law,  the  proi)erty  is  not 
subject  to  execution  against  the  heirs,  nor  can  the 
amount  bequeathed  to  a  legatee  be  garnished.^  The 
operation  of  the  will  of  a  decedent  may  be  such  as  to 
convert  his  real  estate,  or  some  part  of  it,  into  person- 
alty, as  where  he  directs  his  executors  to  sell  such  real 
estate,  and  to  divide  tlie  proceeds  among  his  heirs  or 
to  pay  specific  legacies.  In  such  ca.ses,  neither  an  Jnir 
nor  a  legatee  has  any  interest  in  the  realty  subject  to 
execution    at    law.''     Their    creditors    may,    however, 

'  Huuiphreya  v.  llumpareya,  1  Yeatea,  427;  Do  Haaa  r.  Buna.  2  Pa.  St. 
335;  44  Am.  Dec.  201. 

» .See  aiiti-,  §  ini;  Stout  r.  I^  FoUotto,  04  Ind.  .%9. 

»  Ilcaa  r.  Sborb,  7  Pa.  St.  231;  Baker  v.  Copeabargcr,  15  III.  103;  58  Am. 
Dec.  GOO. 


523  REAL  PROPERTY   SUBJECT  TO  EXECUTTON.  §  184 

generally  reach  such  interests  by  resorting  to  proced- 
ing  in  equit}'.^ 

§  184.  The  Interest  of  a  Mortgagee  is  a  legal  in- 
terest. He  is  invested  with  full  legal  title.  But  this 
title  is  vested  in  huu  only  for  securit}',  and  can  be  of 
no  advantage,  except  when  held  by  the  owner  of  the 
morto-ar^e  debt.  It  would  be  useless  to  nerniit  the  sale 
of  the  mortgagee's  legal  title  under  execution,  if  he 
were  still  to  remain  the  holder  of  the  indebtedness, 
The  indebtness,  being  a  mere  chose  in  action,  was  not 
subject  to  execution.  Hence,  at  common  law,  the 
interest  of  the  mortgagee,  both  in  regard  to  the  indebt- 
edness and  to  the  real  estate,  was  not  subject  to  exe- 
cution. "  Until  foreclosure,  or  at  least  until  possession 
taken,  the  mortgage  remains  in  the  light  of  a  chose  in 
action.  It  is  but  an  incident  attached  to  the  debt ;  it 
cannot  and  ought  not  to  be  detached  from  its  principal. 
The  mortgage  interest,  as  distinct  from  the  debt,  is  not 
a  fit  subject  of  assignment.  It  has  no  determinate 
value.  There  is  no  way  to  render  a  mortgage  vcndi- 
l)le  but  by  allowing  the  debt  to*  go  with  it;  and  this 
would  be  repugnant  to  all  rule,  for  it  is  well  understood 
that  a  choso  in  action  is  not  the  subject  of  sale  on  exe- 
cution. Wlien  the  mortgagee  has  taken  possession  of 
the  land,  the  rents  and  profits  may,  perhaps,  tlien  be- 
come tlic  subject  of  computation  and  sale.  Until  then, 
the   attempt    would   be    useless."^      The   mortgagee's 

'  J).inicl«  r.  El-lri'lge,  12.')  Mass.  S.jO;  I^iiig  r.  Brown,  21  Ala.  179;  50  Am. 
T)oc.  241;  Sparhawk  >■.  CIckiij,  12.')  M.i.ss.  20:i. 

'.lackiM.n  V.  WilUrJ,  4  Joliiis.  43;  Browa  r.  Batc»,  55  Me.  520;  02  Am. 
Dec.  G13;  Trapnall  v.  Suto  Bank,  IS  Ark.  53;  Rickcrt  r.  Ma<lcria,  1  Rawle, 
329:  Coonih*  r.  Warren,  34  Me.  89;  liandall  r.  Famham,  3G  Mc.  8G;  State  r. 
I^wimn.  1  Eng.  209;  Huutiugt^m  r.  Smith,  4  Conn.  235;  Cooper  r.  Martin,  1 
Dana,  23;  F'ortland  B:ink  v    Hall,   13  Maaa.  207;  Blanchard  r.   Colhum,  16 


§4^^"^         rt:al  property  surte(T  to  executiox-  .^*:4 

intv^Tst  cannot  l>o  sold  under  an  exornlion  a;4ainst  liini 
and  tho  njortp^rt<jfor  jt 'hilly,  any  more  than  it  can  under 
a  writ  ai^ainst  him  aloiif.'  The  rulr  ('KiMni)ting  the  in- 
terest oC  a  niortijau^ee  from  execution  as  real  estate  is 
not  confineil  to  mere  formal  morti^au^os ;  but  applies  in 
all  easels  wlu're  the  true  relation  of  the  parties  is  that 
of  mortga<::jor  and  mortgagee,  though  their  apparent 
relation  is  that  of  grantor  and  grantee.  Thus  a  con- 
vevance  absolute  in  its  terms  may  ho  proved  to  liave 
been  made  for  the  jnirpose  of  S(>curing  the  payment  of 
a  debt  due  from  the  grantor  to  the  grantee.  If  so,  the 
interest  of  the  latter,  as  to  i)ersons  having  notice  of  the 
purpose  o(  the  deed,  is  that  of  a  mere  mortgagee,  and 
is  not  subjf-'ct  to  execution.^ 

§  185.  A  DoTTress  did  not,  at  common  law,  have 
any  estate  in  tho  lands  until  assignment  of  her  dower 
was  made,^  Previous  to  her  assignment,  her  interest 
is  a  mere  chose  in  action,  —  nothing  but  a  right,  by 
appropriate  proceedings,  to  compel  the  assignment  to 
be  made.  Wherever  the  interest  of  the  dowrcss  re- 
mains subject  to  common-law  rules,  and  free  from  stat- 
utory innovations,  it  is  clear,  upon  principle,  that  it 
cannot  be  levied  upon  under  execution.*     A  different 

Mass.  345;  Eaton  v.  Whiting,  3  Pick.  484;  Smith  r.  People's  Bank,  24  Me. 
18o;  Morris  v.  Mowatt,  2  Paige,  580;  22  Am.  Dec.  CGI;  Moore  v.  Mayor  of 
N.  Y.,  8  N.  Y.  110;  59  Am.  Dec.  473. 

>  Buck  r.  Sanders,  1  Dana,  188. 

»  Ilarman  r.  May,  40  Ark.  14G;  Clark  v.  "Watson,  141  Mass.  248. 

*  Freeman  on  Cotenancy  ami  Partition,  sees.  108,  121. 

*  Pennington  r.  Yell,  G  Eng.  212;  52  Am.  Dec.  202;  Newman  v.  Willetts, 
48  111.  5:J4;  Blain  r.  Harrison,  11  111.  384;  Hoots  v.  Graham,  23  111.  81;  NasoQ 
r.  Allen,  5  Grcenl.  479;  Gooeh  v.  Atkins,  14  Mass.  .378;  Waller  v.  Mardens, 
29  Mo.  25;  Torry  v.  Minor,  1  Sme<les  &.  M.  Ch.  489;  Tompkins  v.  Fonda,  4 
Pai;{e,  4-tS;  Ritchie  r.  Putnam,  13  Woiid.  524;  Graham  ?'.  Moore,  5  Harr. 
(Del.)  318;  Wallis  r.  Doe,  2  Srnedes  &  M.  220;  Ligou  v.  Spencer,  58  Mi«8.  37; 
Ilayden  r.  Wescr,  1  Mackcy,  457. 


525  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  1S6 

rule  prevails  in  Georgia  and  Pennsylvania,  whenever 
the  dowress,  though  no  assignment  bo  made,  is  in  pos- 
session of  the  lands  of  her  deceased  husband/  In 
some  of  the  states,  a  widow  has,  upon  the  death  of 
her  husband,  a  different  interest  from  that  held  by 
a  dowress  at  common  law,  —  an  interest  giving  her 
a  right  of  possession,  and  making  her  substantially  a 
tenant  in  common  with  the  children  or  other  heirs  of 
the  deceased.-  In  such  states,  we  should  think  that, 
upon  principle,  her  interest  would  be  subject  to  exe- 
cution, unless  exempted  by  statute. 

§  186.  Husband's  Interest  in  Wife's  Lands,  and  in 
Tenancies  by  Entireties. — At  common  law,  the  hus- 
band was,  by  virtue  of  the  marital  relation,  seised  of  a 
freehold  estate  in  all  the  real  property  of  his  wife, 
whether  her  title  existed  at  the  date  of  the  marriao-e 
or  accrued  afterward.  The  husband's  estate,  created 
by  virtue  of  the  marriage  alone,  continued  only  during 
the  joint  lives  of  the  husband  and  wife;  but  by  the 
birth  of  living  issue  of  the  marriage,  the  husband  be- 
came tenant  by  courtesy,  and  entitled  to  an  estate  for 
his  life,  though  his  wife  should  die  before  him.  The 
life  estate  of  which  the  husband  was  seised,  whether 
l>y  virtue  of  the  marriage  or  as  tenant  by  curtesy,  was 
his  property  as  absolutely  as  though  it  had  been  con- 
veyed to  liim  prior  to  the  marriage.  It  was  not  the 
property  of  the  wife;  for  by  virtue  of  the  marriage  in 
ii)  the  one  case,  and  the  birtli  of  living  issue  in  the 
other,  the  law  took  the  estate  from  her,  and  gave  it  to 
her  liusband.     He  could  dispose  of  either  estate  in  any 

>  Pitta  r.  Hendrix.  0  Oa.  452;  Tliomaa  v.  Simpson,  3  Pa.  St.  60. 

»St«<liiian  V.  I'ortuue,  5  Conn.  4i'>'2;  .StokoH  «•.  McAllister,  '2  Mo.  10.3;  C.  & 
A.  Turnpike  v.  Jarrctt,  4  lud.  i.'15;  Wooatcr  v.  Iron  Co.,  38  Coua.  250;  Crocker 
V.  Fox,  1  P.oot,  323. 


I  ISA  REAL   rROrKKTY   Sl'TiTKrr  TO  EXECUTION.  626 

inannor  ho  tlu)U<j:ht  proper.  His  in  di tors  wore  cmi- 
titlotl  to  treat  it  ns  assets,  the  Rame  as  otiior  estiitos  for 
life.  Wherever  th<"  eoiiunon  law  oii  this  sul)ject  still 
prevails,  the  hiishand's  estate  in  the  lands  of  his  wife, 
whether  existinjjj  hy  marital  ri-^ht  or  as  tenant  hy  cur- 
tesv,  is  suhject  to  exeeiition.'  Hence,  when  a  widow 
who  has  had  hrr  dower  as^iij^nid  to  lur  ai^'ain  marries, 
her  second  husl)and  acquires  an  estate  in  the  lands 
held  in  dower,  which  is  siihject  to  execution.^  Nor  is 
it  necessary  that  the  estate  of  the  wife  should  he  one 
entitlinjj:  her  to  the  possession  of  the  property.  It  is 
sufficient  that  it  may  give  her  a  right  of  possession  at 
some  time  during  the  coverture.  Hence,  if  she  is 
seised  of  a  vestctl  remainder,  to  take  eilect  at  the  death 
of  the  tenant  for  life,  her  husband  has  an  estate  therein 
subject  to  execution.'  But  in  some  of  the  states,  all 
the  husband's  intere.st  in  the  property  of  his  wife  is,  by 
statute,  exempt  from  execution.*  Lands  may  be  held 
by  the  husband  and  wife  as  tenants  by  entireties,^  in 
which  case  each  has  a  right  of  survivorship,  incapodble 
of  being  defeated  by  any  act,  omission,  or  default  of 

>  Canby  r.  Porter,  12  Ohio,  79;  Sehncider  r.  Stailir,  20  Mo.  209;  Harvey  r. 
WicUhain,  2:j  Mo.  112;  Hunl  r.  Daus.l.ile,  2  Bitin.  8U;  ScliLrmcrlioni  ?•.  Miller, 
2  Cow.  439;  Murray  v.  Fi.-shback,  Tj  H.  Moii.  412;  Montf^oimry  r.  Tate,  12  Iiul. 
6l'j;  ButterlieKl  r.  litall,  .3  In.l.  20.'1;  Neil  v.  Johnson,  11  Ala.  Gl.");  Check  v. 
Wal.lrurn.  '25  Ala.  1.j2;  Pringle  r.  Allen,  1  Hill  Ch.  IIC);  li;irl)er  r.  Iloot,  10 
Mom.  200;  Ilol>erta  r.  Whitney,  10  Mass.  180;  Litchlicl.l  v.  Cudworth,  1.")  I'ick. 
23;  ShorUll  r.  Hinckley,  .HI  HI.  219;  Oillia  r.  Brown,  5  Cow.  3S8;  Mitchell  v. 
Sjvier,  9  Humph.  140;  Metropolitan  Bank  r.  Hitz,  1  Mackcy,  111;  MatU-r  of 
Winuc.  1  Lant».  514;  Wickes  r.  Clarke,  8  Paige,  172.  In  I'enuBylvauia  the  rule 
is  otherwise,  and  the  huuband'u  life  eaUte  in  the  laudii  of  Win  wife  id  not  Bubjoct 
to  execution.  .Snavely  r.  Wagner,  .1  Pa.  St.  27.');  47)  Am.  Dec.  010;  Gordan  v. 
Ingraljani,  I  (Jrant  Cas.  150;  Kurtz  y.  L(|U{,  30  Pa.  St.  502. 

'  McConihe  r.  .Sawyer,  12  N.  H.  390. 

»  Brown  r.  Gale,  5  N.  H.  410. 

♦Junction  K.  K.  Co.  v.  Hirris,  9  Ind.  184;  White  r.  Dorris.  35  Mo.  181. 

*  For  duAcription  of  tbij  tenancy,  see  Frueiuaa  on  Cotenancy  and  Partition. 
63-76. 


527  REAL   PROPERTY  SUBJECT  TO  EXECUTION.  §187 

the  other.  But  if  the  husband  has,  by  comraoQ  law, 
certain  estates  and  rights  in  real  property,  belonguig 
wholly  to  his  wife,  can  he  have  estates  and  rights  of 
less  dignity  and  value  in  real  property  belonging  partly 
to  her  and  partly  to  himself?  The  answer  given  by 
a  majority  of  the  authorities  on  the  subject  is,  that 
though  the  lands  be  held  by  entireties,  the  husband 
has  during  the  joint  lives  of  the  spbuses,  the  right  to 
the  possession  and  enjoyment  of  the  property  as  fully 
as  if  the  title  thereto  were  vested  exclusively  in  his 
wife.  It  follows,  as  a  result  from  this,  that  this  life 
estate  is  subject  both  to  voluntary  and  to  involuntary 
transfer.^  This  opinion  has  not  received  universal  con- 
currence," and  whetlier  correct  or  incorrect,  upon  com- 
mon-law principles,  is  entirely  inapplicable  in  those 
states  where  tht-  marital  rights  of  husbands  have  been 
modiBed  or  destroyed  by  statute,  and  the  realty  of 
wives  exempted  horn  levy  and  sale  under  executions 
airainst  their  husbands.^ 

§  187.  Trust  Estates  were  not,  at  common  law, 
re'^'arded  as  assets,*  nor  were  they  suljject  to  debts  due 
to  private  persons,  and  it  is  doubtful  wliether  they 
were  liable  to  crown  debts.  "But  l)y  the  statute  13 
Elizabetli,  c.  4,  it  is  enacted  that  if  any  person  wlio  is 

'  Frecmnn  f)n  Cotenancy  and  Partition,  sees.  73,  74;  Amoa  v.  Norman,  4 
.Snce<l,  OD-J;  St(K,-blur  r  Kn.-rr,  r>  Watts,  181;  PVcnch  v.  Mclian,  50  Pa.  St.  281); 
McC'unly  r.  Canning,  CA  P;i.  St.  41;  Ik-nnett  r.  CbiM,  10  Wis.  3(;2;  Litchficlil 
r.  Cua worth.  15  Pick.  23. 

'  Jiick.'^on  V.  MiCoiincIl,  19  Wend.  178;  Tlioniaa  v.  V>o  liiitim,  1  McCartcr 
Cli.  40;  Clianilicr  r.  Clieiiey,  37  Iiul.  4().S;  Vinton  v.  Boanier,  5.'>  .MicU.  r>.VJ, 

*  McC'urdy  r.  Canning,  04  Pa.  Sli41;  Cliandlcr  »•.  Cauucy,  37  lad.  408.  In 
the  laat-nauicd  nUt<r  it  haji  aUo  Imxmi  «letc-nnin<.'d  that  croiM  rained  hy  tho  hun- 
band  on  landn  held  hy  hunsclf  and  wifo  in  c  ntiretioH  an;  not  Mul)j.ct  to  execu- 
tion.    PatU>n  r.  Ilaukin,  08  Ind.  245 

♦  Bennett  r.  Box,  I  Ch.  Ca«.  12. 


1187  RKAL  PROrERTY  SlTRTKcT  TO  EXECUTION.  523 

ail  accoiintiint,  or  iudobtcd  to  tho  crown,  shall  purchase 
any  lau(N  in  tho  nanu'  of  other  jicrsoiis,  to  his  own  use, 
all  such  lands  shall  ho  taken  for  the  satisfaction  of  the 
iKhts  «luo  hy  such  jK^rsons  to  tho  crown."'  To  cnahlo 
private  cnnlitors  to  ohtain  satisfai-tion  of  their  debts 
bv  oxtcndin''  lands  luM  in  trust,  tho  statute  of  29 
CharK's  11.,  i*.  [),  enacted  "that  it  shall  and  may  bo 
lawful  for  every  shcritf,  or  other  ollicer  to  whom  any 
writ  or  precept  shall  be  directed,  ui)on  any  judgment, 
stiitute,  or  recognizance,  to  do,  make,  and  di'livcr  exe- 
cution unto  the  party  in  that  behalf  suiiiL,'-,  of  all  such 
lanils,  tenements,  etc.,  as  any  other  person  or  persons 
shall  be  seised  or  possessed  in  trust  for  him  against 
whom  execution  is  so  sued,  like  as  the  sherilf,  or  other 
officer,  might  or  ought  to  have  done  if  said  party, 
against  whom  the  execution  shall  be  so  sued,  had  been 
seised  of  such  lands,  tenements,  etc.,  of  such  estate  as 
they  be  seised  of  in  trust  for  him  at  the  time  of  tho 
said  execution  sued,  which  lands,  tenements,  etc.,  by 
force  and  virtue  of  such  execution,  sluJl  accordingly 
be  held  and  enjoyed,  freed,  and  discharged  from  all 
encumbrances  of  such  person  or  persons  as  sliall  be  so 
seised  or  possessed  in  trust  for  the  person  against  whom 
such  execution  shall  be  sued;  and  if  any  cestui  que  trust 
shall  die  leaving  a  trust  in  fee-simple  to  descend  to  his 
heir,  then,  and  in  every  such  case,  such  trust  shall  bo 
deemed  and  taken,  and  is  hereby  declared  to  be,  assets 
by  descent;  and  the  heir  shall  be  liable  to  and  charge- 
able with  the  obligation  of  his  ancestors,  for  and  by 
reason  of  such  assets,  as  fully  and  am[)ly  as  he  might 
or  ought  to  have  been  if  the  estate  in  law  had  de- 
scended to  him  in  po.s.se.ssion  in  like  manner  as  tho 
trust  descended." 

'  1  (;ruciil.  Cruiac,  412. 


529  REAL  PROPERTY  SUBJECT  TO  EXECUTIOM".  §  IfS 

The  tendency  of  the  decisions  has  been  such  as  to 
restrict  the  operation  of  this  statute  to  the  cstates- 
tlierein  clearly  and  expressly  designated.  It  by  no 
means  follows  that,  in  states  which  have  adopted  this 

• 

or  a  similar  statute,  all  equitable  estates  arc  subject 
to  execution.  On  the  contrary,  it  will  be  found  that 
the  equitable  interests  comin<^  within  the  statutes  are 
comparatively  rare.  In  King  v.  Ballctt,^  the  statute 
was  held  not  to  extend  to  estates  for  years.  In  other 
cases  it  has  been  held  that  the  interest  of  a  cestui  que- 
trust  is  not  within  the  statute,  where  others  are  also 
beneficiaries  under  the  trust.^  "  The  words  of  the 
statute  are  'seised  or  possessed  in  trust  for  him  against 
whom  execution  is  sued,  like  as  the  shcriif  might  do 
if  that  person  were  seised.'  This  statute  made  a  change 
in  the  common  law,  and  —  up  to  a  certain  extent  at 
least — made  a  trust  the  subject  of  inquiry  and  cogni- 
zance in  a  legal  proceeding.  We  think  the  trust  tliat 
is  to  be  thus  treated  must  be  a  clear  and  simple  trust 
for  the  benefit  of  tlie  debtor,  the  object  of  the  statute 
appearing  to  us  to  be  to  remove  the  technical  objection 
arising  from  the  interest  in  land  being  vested  in  an- 
otlior  person,  where  it  is  so  vested  for  the  benefit  of 
the  deljtor."^  The  operation  of  this  and  similar  stat- 
utes, seems  to  be  confined  to  cases  where  a  cestui  que 
trust,  by  virtue  of  a  conveyance  or  devise,  is  entitled 
to  the  full  and  exclusive  benefit  and  enjoyment  of  an 
estate  the  legal  title  to  which  is  vested  in  another. 

g  188.     Trust  Estates  —  English  Statutes  Adopted 
in  America.— Tin-  statute  of  2'J  Ciuirlus  II.,  referred 

'  2  Vern.  248. 

'  H-arri*  r.  Pugh,  4  King.  SHo;  Doo  r.  Grcenhill,  4  liarn.  &  Aid.  684;  Lynch 
V.  Utica  In.'*.  Co..  IS  Wiii-l.  2:J(J;  H.-irri.'um  r.  liattlo,  1  Dcv.  Ei].  537. 
*  Doe  V.  Or«enhill,  4  Baru.  &  AKl.  CDO. 
Vol.  I.  -  U 


I  1S8  lUvAL  PUOPKUTY  SUBJECT  TO  EXECUTION.  030 

t-.>  in  tht'  ])roco(ruiuf  sootioii,  tlnl  not  rxtrnd  to  the  prov- 
intvs.  In  sttiiu*  ot'tlio  Ignited  Stati's  it  luus  lu-vir  Ijci-n 
ailoptoil.  ami  (!k'  rul»'  in  it'i^ard  to  takiiiLj  trnst  estates 
updor  exivnti<»n  renjains  as  at  coimiiou  law.'  Tliisst^it- 
ute  was,  liowoviT,  iv-i'nacti'il.  in  sul)stanco  or  in  form, 
in  many  of  the  states;  and  wluiv  so  enacted  its  eflcct 
was  eonfnu'd.  as  undei-  tlu-  l]n;^lisli  decisions,  to  clear 
and  nnmixinl  trusts.  In  AI.lIi.hm.i  jxrfcct  ((juitie^  arc 
subject  to  execution;'"  and  it  has  been  said  by  the  su- 
preme court  of  that  state  that  "the  perfect  equity 
which  the  statute  subjects  to  levy  and  sale  under  exe- 
cution at  law  is  of  oni'  class  oidy, — that  of  a  vendco 
who  has  paid  the  purchase-money";  and  that  the  "  stat- 
ute subjects  to  levy  and  sale  an  etjuity  of  redemption, 
a  |X^rfect  eijuity,  —  the  defendant  havin<^  paid  the  pur- 
chase-money,—  a  lei^al  title,  or  a  vested  Icfj^al  interest 
in  possession,  reversion,  or  remainder,  whether  it  is  an 
entire  estate  or  held  in  common  with  others."^  Hence, 
where  a  convtyance  is  made  to  a  trustee  with  power 
to  sell  the  propi-rty  conveyed  on  default  l)einf^  made 
in  the  payment  <»f  a  specified  debt,  and  where  the 
law  grants  to  the  debtor  the  privile;^e  of  redeeming 
from  a  sale  made  under  such  trust,  he  nevertheless  has 
not,  after  such  sale,  that  perfect  equity  which  is  subject 
to  execution.  In  Arkansas  the  statute  declares  sub- 
ject to  execution  all  real  estate  whereof  the  defendant 
or  any  person  for  his  use  was  seised  in  law  or  equity 
on  the  day  of  the  rendition  of  the  judgment,  or  at  any 
time  thereafter.  Tiie  object  of  the  original  enactment 
of  this  statute  was  to  subject  t<j  execution  lands  pur- 

»  Ra«sell  r.  I>;wis  2  Pick.  508;  Merrill  r.  Brown.  12  Pick.  216. 

*  Cfxlc  Ala.,  Hcc.  2>>71 ;  bco  Wiluou  r.  beard,  lU  Ala.  020;  Doc  r.  McKimiey, 
6  AU.  719. 

*  Sbaw  r.  Lindscy,  CO  Ala.  344;  Smith 'a  Ex'r  r.  CockroU,  GG  Ala..  G4. 


531  REAL  PROPERTY   SUBJECT  TO  EXECUTION.  §  1S8 

chased  from  the  United  States  for  which  full  payment 
had  been  made,  but  to  which  no  patent  had  issued. 
The  interpretation  of  the  statute  has  therefore  been 
such  as  to  confine  it  to  perfect  or  simple  equities, — 
those  in  which  the  interests  of  the  beneficiary  were  so 
clear  that  no  sacrifice  of  his  estate  was  likely  to  follow 
from  subjecting  it  to  execution.  Hence,  if  he  makes  a 
deed  of  trust  to  secure  the  payment  of  certain  debts 
therein  specified,  the  equitable  rights  retained  by 
him  are  not  subject  to  execution.^  In  Delaware  and 
Georgia,  perfect  or  passive  equities,  as  where  lands 
have  been  purchased  and  complete  payment  made,  so 
that  the  purchaser  is  entitled  to  a  conveyance,  are  sub- 
ject to  execution.^  In  Kentucky  the  estates  embraced 
within  the  statute  of  29  Charles  arc  liable  to  execu- 
tion,^ but  no  others.*  Trust  estates  are  not  liable  in 
Michigan,^  nor  in  Xew  Jerse3^^  Mere  trusts,  pure 
and  simple,  are  subject  to  execution  in  Mississippi;' 
but  imi)crfect  and  complicated  trusts  are  not.®  This 
remark  seems  to  be   equally  applicable  to   Missouri.' 

'  Pcttit  f.  Johnson,  15  Ark.  53;  Biscoe  v.  Royston,  18  Ark.  508;  Pope's 
Heirs  r.  Boyd,  22  Ark.  5.38. 

»  McMulIcn  r.  Lank,  4  Houst.  648;  Pitta  r.  BuUard,  3  Kelly,  5;  40  Am. 
Dec.  405. 

»  BUuchar.l  t-.  Taylor,  7  B.  Men.  fri5;  E;istland  c.  Jordan,  3  Bibl>,  186; 
Jonen  r.  I.angliorn,  3  BUjIj,  4.")3;  Anderson  r.  BrJHCoe,  14  Bush,  344. 

•  Allen  r.  Saunders,  2  Bilih,  '.H;  Ornwhy  v.  Taraacon,  3  Litt.  412;  January 
V.  Bradford,  4  Bd>l),  i'A'A];  Tyri-o  r.  Wdliainn,  3  Bil>l>,  3t>3;  6  Am.  Doc.  G«;3. 

'Oorham  r.  Wing,  10  Mich.  486;  Trask  i:  iirucn,  t)Mith.  358. 

•  Hugan  r.  Jacques,  19  N.  J.  Eq.  123;  1)7  Am.  Dec.  644;  Vunclcve  r.  (Jroves, 
3  Crecn  Ch.  :i30. 

'  Presley  r.  Rotlgcru,  24  Mlm.  520;  Boarman  v.  Catlott,  13  Smcdoa  &  M. 
149. 

•  IIopkin«  r  Carey,  23  Mi»w.  M. 

•  Mcllvaino  r.  Smith,  42  Mo.  45;  97  Am.  Dec.  295;  Brant  v.  Robertson,  16 
Mo.  129;  Brr«-lw.ll  r.  Yantw,  10  Mo.  403;  Anthony  v.  Rogern,  17  Mo.  394; 
Wagnir'M  .SUt«.  60.>;  (Jen.  Stat«.,  cd.  of  1805,  c.  160,  hoc.  6;  Morgan  v.  Bou»e, 
63  Mo.  210. 


§  l><^  r.K.AL  rUiMM-.PvTY   SUR.rFAT  TO   EXECUTION.  nSJ 

In  N.w  V.irk  "(lu'  Krvisfd  Statutrs  iirovulc  that  lands, 
touemonts.  ami  iral  islatr  liolilcii  l»y  any  niic  in  trust 
or  for  tlio  ust»  of  anotlur  sliall  1h'  liaMi'  to  debts,  judj;- 
nionts  and  drcroos,  rxorutions  and  attaclnncnts,  against 
tho  person  to  \vlu)So  use  tlu'V  arc  liuliKu,  in  the  casco 
and  in  the  nianner  i)rcscril)cd  in  the  first  chapter  of  tlio 
second  inirt  of  the  Revised  Statutes."  ^  In  North  Caro- 
lina, South  Carolina,  Tennessee,  and  Virginia,  the  de- 
cisions are  in  substantial  harmony  with  tho.se  made 
under  the  statute  of  2"J  Charles  II."  Lands  are  not 
there  subject  tt)  execution  against  a  cestui  que  irui,t,  un- 
less the  trustee  could  i-onvi  y  him  the  entire  legal  title 
without  committing  a  breach  of  trust.^  The  condition 
of  the  title  must  be  such  that  the  purchaser  at  execu- 
tion sale  can  be  treated  as  having  acquired  the  entire 
title,  both  legal  and  e(|uitable.  If  the  sale  would  leave 
any  outstanding  equity  in  any  other  person,  then  the 
property  is  nttt  subject  to  execution.'*  The  debtor  must 
be  in  such  a  condition  that  the  convcj'ance  of  the  legal 
title  would  be  decreed  to  him  were  he  to  sue  for  it.^ 
"  The  statute  of  uses  never  executes  the  use  while 
there  is  anything  for  the  trustee  to  do  necessary  to 

»  4  Wait'B  Practice,  37  tl;  sec  Wriglit  r.  Douglass,  .3  Barb.  574;  Brewster  v. 
Power,  lO  Paige,  oG7;  GarfieKl  v.  Hatiiiaker,  l."»  N.  Y.  47o;  Mallory  r.  Clark, 
20  How.  Pr.  418;  0  Abb.  Pr.  ri.'iS;  Lynch  r.  Utica  Ina.  Co.,  18  Weti-l.  2'M; 
Bogert  r.  Perry,  17  .luhns.  .351;  8  Am.  Dec.  411;  Kellogg  v.  Woo.l.  4  Paige, 
678;  Jackson  r.  Bateman,  2  Wen.l.  570;  fJuthrio  v.  CJarJner,  10  Weml.  414; 
F«x>tc  V.  Colvin,  3  .lohna.  21C>;  3  Am.  Dec.  478. 

»  Gillis  r.  McKay,  4  Dev.  17'2;  Harrison  r.  Battle,  1  Dev.  Eq.  537;  Moore 
r,  McDuffy,  3  Hawks,  578;  Brown  v.  Craves,  4  Hawks,  342;  Melton  r.  Daviil- 
Bon,  6  Iretl.  Vai  194;  Thomiison  r.  Fonl,  7  Iretl.  418;  Freeman  r.  Perry,  2  Dev. 
Eq.  213;  Burgin  »•.  Burgin,  1  Ireil.  100;  Sliutc  v.  Harder,  1  Ycrg.  1;  24  Am. 
I>ec.  427;  Hurt  r.  Keevca,  5  Hayw.  (N.  C.)  50;  Smith  v.  Cray,  1  Humiih.  491; 
Whit«  r.  Kavanagli,  8  Rich.  377;  Claytor  r.  Anthony,  G  Rand.  285;  Coutta  r. 
Walker,  2  Uigh,  2.S0. 

»  Battle  r.  Petway,  5  Ired.  570;  44  Am.  Dec.  59. 

*  Tally  r.  lieid,  72  N.  C.  S.'JO. 

»  Love  p.  Smathuni,  82  N.  C.  309;  Davis  r.  Inscoe,  &4  N.  C.  403, 


533  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  ISS 

the  accomplishment  of  the  trust  created  by  the  deed. 
It  applies  only  in  cases  where  there  is  nothing  to  be 
done  by  the  trustge,  as  where  an  estate  is  given  to  one 
and  his  heirs  simply  in  trust  for  another.  In  such  case, 
the  title  passes  through  the  trustee  directly  to  the 
cestui  que  trust,  the  latter  becoming  the  legal  owner  by 
virtue  of  this  transmission  caused  by  the  statute.  But 
where  the  trustee  is  charged  with  the  performance  of 
some  duty  in  connection  with  the  property,  which  can- 
not be  performed  except  by  authority  of  the  legal 
estate  vested  in  him,  the  statute  has  no  application, 
because  if  it  did,  it  would  defeat  the  very  purpose  in- 
tended by  the  execution  of  the  deed."^  A  testator 
devised  lands  to  D.  and  B.,  in  trust  for  the  use  and 
benefit  of  the  testator's  son  and  daughter,  with  direc- 
tions to  divide  such  lands  equally  between  the  son  and 
daughter,  to  be  used  by  each  respectivel}'  during  his  or 
her  natural  life,  and  after  the  death  of  either,  to  divide 
his  or  her  share  equally  among  his  or  her  children. 
The  executors  made  the  division  of  the  lands  between 
the  son  and  daughter,  who  respectively  went  into  the 
possession  of  tlie  parts  assigned  to  them.  After  this 
tlie  part  allotted  to  the  son  was  sold  under  execution 
against  liim.  But  the  court  was  clear  that  no  title 
passed  by  the  sale:  1.  Because  the  debtor  was  entitled 
to  a  portion  only  of  the  land,  and  hence  could  not  com- 
pel a  conveyance  of  tlie  legal  title  to  him ;  and  2.  Be- 
cause it  was  necessary  tliat  tlie  executors  should  retain 
the  title  to  enable  them  to  perform  the  duty  enjoined 
on  tlieni  of  dividin*'  the  son's  share  amonfj  his  children 
upon  liis  dcatli." 

In  Ohio,  equities  an;  not  sulyect  to  execution  unless 

«  BriHtow  r.  McCall.  IG  S.  C.  548. 

'  Bmtow  V.  McCall,  10  b.  C.  548;  see  also  Bunch  v.  llanly,  3  Lua,  543. 


§  1^9  \\V.\L   l'R(irr.RTY   SURTECT  TO  EXECUTION.  534 

acconi|)anit(l  l>y  jutssrssion,  and  cncii  tlirii  it  \a  not 
I'li-ar  wlu'tliri"  tlu'  r(|uity  is  (ranslri  red,  oi-  only  the 
possessory  intoivst.'  In  California,  Connecticut,  In- 
diana, Iowa,  Kansas,  ^laryland,  Now  Hampshire, 
Nevada,  and  IV'nnsylvania,  e(juital)]t>  estates  are  sub- 
ject to  execution  nuicli  nu»ro  extensively  tlian  under 
the  statute  of  "JD  Charles  11.  In  fact,  in  most  of  these 
states  all  beneficial  estates  arc  liable  to  be  taken  in  exe- 
cution, irrespective  of  the  question  whether  they  are 
le<jfal  or  equitable." 

S  189.  Resulting  Trust.  —  When  the  consideration 
for  a  conveyance  is  paid  by  one  man,  but  the  deed  is 
taken  in  the  name  of  another,  the  parties  being  strangers 
to  each  other,  a  resulting  or  presumi)tive  trust  at  once 
arises  in  favor  of  the  one  by  whom  the  consideration 
was  furnished,  entitling  him  to  hold  the  other  as  his 
trustee.  Some  difference  of  opinion  has  been  mani- 
fested whether  the  beneficiary  under  such  a  trust  has, 
under  the  act  of  29  Charles  II.  and  similar  statutes,  an 
estate  subject  to  execution.  The  object  of  taking  the 
conveyance  in  the  name  of  a  person  other  than  the  one 
by  whom  its  consideration  was  paid  may  be  innocent; 
but  it  is  more  frequently  for  the  purpose  of  concealing 
the  real  ownership  of  the  property  from  creditors,  who, 

>  Roads  V.  Symmea,  1  Ohio,  281;  13  Am.  Dec.  621;  Douglass  v.  Houston,  G 
Ohio,  150;  Scott  v.  Douglass,  7  Ohio,  227;  Miner  v.  Wallace,  10  Ohio,  403; 
Ilaynes  r.  Baker,  .5  Ohio  .St.  255. 

*  Davenport  r.  Lacon,  17  Conn.  273;  State  Bank  v.  Macy,  4  Ind.  302;  Pen- 
nington V.  Clifton,  11  Ind.  102;  Hutcliiiia  v.  Hanua,  8  Iml.  533;  Oosby  v. 
ElkaJer  Lo<lge,  10  Iowa,  399;  Uarri-son  v.  Kramer,  3  Iowa,  543;  Riser  r.  Saw- 
yer, 4  Kan.  503;  Miller  v.  Allison,  8  Gill  &  J.  35;  McMuchen  v.  Marmaii,  8 
CiiU  &  J.  57;  Iloiikins  r.  Stumii,  2  Har.  &  .J.  301;  IleyuohLs  v.  Crawfi.nl,  7 
Har.  &  J.  52;  Pritchard  v.  Brown,  4  N.  H.  397;  17  Am.  Deo.  431;  Upham  v. 
Varney,  15  N.  H.  402;  Garro  v.  Thompson,  7  Watta,  410;  Dake  v.  Brown,  08 
Pa.  St.  223;  Kennedy  r.  Nuuan,  52  Cal.  320. 


635  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  lS9a 

upon  knowing  the  truth,  would  at  once  institute  meas- 
ures looking  towards  the  compulsory  satisfaction  of 
their  demands.  In  either  event,  the  majority  of  the 
authorities  inclines  to  the  view  that  the  estate  may  be 
taken  in  execution  the  same  as  though  the  trust  was 
expressed  in  the  conveyance.^  This  majority  is  op- 
posed by  a  minority  very  nearly  its  equal  in  number 
and  importance.^ 

§  189  a.  Trusts  and  Devises  to  "Withdraw  Prop- 
erty from  Execution.  —  Wo  now  approach  a  subject  of 
great  importance,  and  one  in  respect  to  which  the  au- 
thorities are  riot  in  entire  harmony.  The  efforts  of  the 
owner  of  property  to  withdraw  it  from  execution  against 
him,  while  he  retains  some  beneficial  interest  therein  for 
himself  or  his  family,  would  undoubtedly  be  met  and 
counteracted  by  the  statutes  and  decisions  denouncing 
all  conveyances  and  devises  the  design  or  operation  of 
which  is  to  hinder,  delay,  or  defraud  creditors.  Each 
debtor  is  under  both  a  moral  and  a  legal  obligation  to 
pay  his  debts,  and  he  cannot  be  permitted  to  evade 
such  obligation  by  creating  any  trust  for  the  benefit  of 
himself  or  his  family.     But  while  a  parent  is  under  no 

»  Pritchard  v.  Brown,  4  N.  H.  397;  17  Am.  Dec.  431;  Tevia  v.  Doe,  3  Ind. 
129;  BiAA)  r.  Woodward,  50  Mo.  9.');  Footo  v.  Colvin,  3  John3.  21G;  Guthrie  v. 
Gardner,  19  Wend.  414;  Wait  v.  Day,  4  Deaio,  439;  Ontario  Bank  v.  Root, 
3  Pai^c,  478.  But  it  i3  otherwise  under  tlie  present  statutes  of  New  York. 
Garfield  r.  Hatniaker,  15  N.  Y.  475.  In  Maine,  property  bought  by  Inishand  in 
name  of  wife  may  he  taken  in  execution,  tho  statute  raising  resulting  tru.st  in 
hi.i  favor.  Low  v.  Marco,  53  Me.  45;  Thomas  v.  Walker,  G  Humph.  93;  Evans 
r.  Wihler,  5  Mo.  3!3;  Puinkin  v.  Harper,  23  Mo.  579;  Dunnica  r.  Co.\,  24  Mo. 
1G7;  G9  Am.  Dec.  4'JO;  Herrington  v.  Ilerrington,  27  Mo.  500;  Dewey  v.  Long, 
25  Vt.  5G4.  But  in  Mi.s.souri  and  Vermont  tho  interest  accpiircd  by  tho  pur- 
chaser »eemH  to  be  the  equity  only,  ami  not  the  legal  title. 

»  Harriuon  r.  Hollis,  2  Nott  &  McC.  578;  Bauskett  v.  Holsonback,  2  Rich. 
624;  Jimmcrson  r.  Duncan,  3  Jones,  537;  Mitchell  r.  Robertson,  15  Ala.  412; 
Wilson  r.  Beard,  19  Ala.  G29;  Gentry  o.  Harper,  2  Jonca  Eq.  177;  Growing  r. 
Rich,  1  Ired.  553;  Maynard  v.  Iloskins,  9  Mich.  485,  l>y  statute. 


§  ISO*  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  538 

obli«;ation  io  pay  t'itlior  the  present  or  future  debts  of 
his  chiKl.  he  ouij^ht  to  feel  a  sohcitudc  for  its  future 
Avelfare,  aiul  a  desire  to  <;-uard  it  aq;aiiist  future  penury. 
The  s^reater  the  ineapaeity  or  improvidence  of  the 
chikl,  aj\d  the  consequent  probability  of  its  becoming 
subject  to  obhi^ations  which  it  is  unable  to  meet  b}''  its 
own  efforts,  the  greater  ought  to  be  the  solicitude  and 
forethought  of  the  parent  in  making  some  provision  for 
its  maintenance  and  comfort  which  will  elude  or  with- 
stand the  efforts  of  its  creditors,  whether  such  efforts 
are  confined  to  ordinary  proceedings  under  execution, 
or  are  aided  by  such  i)(>wers  of  chancery  as  can  Ix;  in- 
voked by  a  creditor's  bill. 

Where  statutes  have  not  been  enacted  subjecting  all 
equitable  estates  to  execution,  property  may  be  with- 
drawn from  execution  at  law  by  making  it  the  subject 
of  some  active  trust;  but  in  tliat  event  it  may  be 
reached  by  a  creditor's  bill.  The  question  we  propose 
to  consider  is,  What,  if  anything,  will  place  property 
beyond  the  reach  of  tlic  creditors  of  the  beneficiary, 
whether  proceeding  at  law  or  in  equity?  A  direct 
devise  or  conveyance,  with  a  provision  forbidding  alien- 
ation by  the  devisee  or  grantee,  or  declaring  that  the 
property  shall  not  be  subject  to  execution,  cannot  with- 
draw the  property  from  execution,  for  the  prohibition 
does  not  operate  to  divest  the  debtor's  estate  and  vest 
it  in  another,  and  while  he  retains  the  whole  beneficial 
estate,  it  must  carry  with  it  the  power  to  dispose  of  the 
property  by  transfer,  whether  voluntary  or  involuntary.^ 
On  the  other  hand,  it  is  now  clear  that  the  proi)erty 
may  be  withdrawn  from  creditors  by  so  limiting  its 
possession  and  enjoyment  that  the  estate  or  interest  of 

>  Bridge  r.  Ward,  35  Wis.  087;  Blackstono  Bank  v.  Davia,  21  Pick.  142;  32 
Am.  Dec.  241. 


537  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  lS9a 

the  beneficiary  or  grantee  will  terminate  on  his  becom- 
ing insolvent  or  bankrupt,  or  on  an  attempt  being  made 
to  seize  the  estate  for  the  benefit  of  his  creditors.^ 
Thus  vrhere  an  annuity  was  given  to  the  testator's 
nephew  during  his  natural  life,  to  be  paid  to  him  only 
and  upon  his  receipt,  and  expressing  an  intent  that  the 
annuity  should  not  be  alienated,  and  if  alienated,  that 
it  should  immediately  cease  and  determine,  and  the 
nephew  was  adjudged  a  bankrupt,  and  his  assignees  in 
bankruptcy  sought  to  recover  the  annuity,  it  was  held 
that  there  could  be  no  recovery,  because  by  the  aliena- 
tion consequent  upon  the  adjudication  of  bankruptcy 
the  annuity  had  ceased."  A  testator  devised  certain 
real  estate  to  trustees,  with  power  to  dispose  of  the 
same,  and  after  paying  certain  charges  out  of  the  y>vo- 
cecds,  to  invest  the  residue,  and  of  the  income  to  be 
raised  out  of  such  investments  one  moiety  was  to  be 
paid  to  his  son  and  the  other  to  his  daughter;  and  the 
testator  directed  "  that  in  case  his  son  should,  at  any 
time  or  times,  make  any  assignment,  mortgage,  or 
charge  of  or  upon,  or  in  any  manner  dispose  of,  by  way 
of  anticipation,  the  said  interest,  dividends,  or  accumu- 
lation 4,  or  any  part  thereof,  or  attempt  or  agree  so  to 
do,  or  commit  any  act  whereby  the  same  or  any  part 
thereof  could  or  miglit,  if  the  absolute  property  thereof 
wx're  vested  in  him,  be  forfeited  unto  or  become  vested 
in  any  person  or  persons,  then  in  any  of  such  cases  the 
said  trustees  should  henceforth  pay  and  apply  the  said 
interest,  dividends,  and  accumulations  for  the  mainte- 
nance and  support  of  liis  said  son,  and  any  wife  or  child 
or  children  he  miglit  have,  and  for  the  education  of 
such  issue,  or  any  of  thcni  as  his  trustees  for  the  time 

»  Joel  r.  Mill*,  3  Kay  &  J.  4r)8;  Rochford  v.  Hackmau,  9  Hare,  475. 
«  Dominatt  v.  Bodiord,  3  Vcj.  Jr.  143. 


§  ISO*  REAL  rROPKRTY  SrWECT  TO  EXECUTION.  PHS 

l)ein£f  sliould,  in  their  ilisoretion,  think  lit."  The  son 
bocanio  a  l)ankni|tt.  \VhtitU|i()n  a  Mil  wa.s  lih'd  hy  liis 
assii^noo  in  hankruptoy  Iit  a  dccivo  to  coiMp"!  the 
trustees  to  pay  them  the  moiety  to  which  the  son 
would  have  been  entitled  had  tlu'  liat  in  hankruptcy 
not  iswueil  against  him.  l>ut  the  prayer  of  the  hill  was 
denied,  on  the  j^round  that,  after  the  commission  ot*  the 
act  of  bankruptcy,  tlio  son  retained  no  interest  in  the 
ptroperty.' 

A  will,  wherem  the  testatrix  devised  her  estate  to 
trustees  for  the  benefit  of  her  sons,  "contained  a  pro- 
vision that  if  her  said  sons  res[tectively  should  alienate 
or  dispose  of  the  income  to  which  they  were  entitled 
under  tlie  trusts  of  the  will,  or  if,  l)y  reason  of  bank- 
ruptcy or  insolvency,  or  any  other  means  whatsoever, 
said  income  could  no  longer  be  personally  enjoyed  by 
them  respectively,  but  the  same  would  become  vested 
in  or  jjayable  to  some  otlier  person,  then  the  trust 
expres.sed  in  said  will  concerning  so  much  thereof  as 
would  so  vest,  .should  immediately  cease  and  determine. 
In  that  case,  during  the  residue  of  the  life  of  such  .son, 
that  part  of  the  income  of  the  trust  fund  was  to  be 
paid  to  the  wife  and  children,  or  wife  and  child,  as  the 
case  might  be,  of  such  son ;  and  in  default  of  any  objects 
of  the  la.st-mentioned  trust,  the  income  was  to  accu- 
nmlatc  in  augnicntation  of  the  principal  fund.""  This 
provision  was  sustained  as  against  the  claims  of  the 
assignee  in  bankruptcy  of  one  of  the  son.s.  If  property 
is  conveyed  or  devised  to  trustees,  who  are  vested  with 
a  di.scretion,  in  case  they  see  fit,  to  apply  the  income  or 
proceeds  for  the  benefit  or  support  of  the  beneficiary, 
Le  has  no  interest  which  can  be  reached  by  creditor's 

*  Goddcn  r.  CrowhurHt,  10  Sim.  G43. 
»  NicboU  V.  liaton,  'Jl  U.  S.  718. 


539  REAL  PROPERTY   SUBJECT  TO  EXECUTION.  §  lS9a 

bUl.  As  he  had  no  power  to  compel  the  trustees  to 
act  for  his  benefit,  his  assignee  or  creditors  can  have 
none.^  It  must  therefore  be  conceded  that  propertj^ 
may  be  withdrawn  from  the  reach  of  the  creditors  of 
the  beneficiary  by  hraiting  his  estate  so  that  it  will  be 
terminated  by  his  alienation  voluntarily  or  involuntarily, 
or  by  vesting  it  in  trustees  who  have  a  discretion  to 
apply  it  for  his  benefit,  or  not.  The  vice  of  each  of 
therse  methods  is  that  it  involves  the  beneficiary  and 
his  creditors  in  common  ruin;  for  while  it  thwarts  the 
efforts  of  the  creditors,  it  leaves  the  intended  beneficiary 
either  without  any  estate  or  dependent  on  the  caprice 
of  the  trustees.  Hence  efforts  have  been  made  to  devise 
other  trusts  under  which  the  beneficiary  may  retain 
some  absolute  rights,  notwithstanding  his  subsequent 
bankruptcy.  These  efforts  have  generally  proved  futile 
in  England,  but  have  met  with  encouraging  success 
in  the  United  States,  as  will  more  fully  appear  from  a 
reference  to  the  leading  cases  upon  the  subject.  In  the 
case  of  Brandon  i\  Robinson,*  it  appeared  that  Stephen 
Goom  had  devised  and  bequeathed  his  estate  to  trus- 
tees to  sell,  and  to  divide  or  otherwise  apply  the  produce 
to  the  use  of  all  his  children  living  at  his  decease,  in 
equal  proportions,  and  he  directed  with  reference  to  the 
eventual  interest  of  his  son  Thomas  that  it  should  be 
laid  out  in  public  funds  or  securities,  and  that  the  divi- 
dends should  be  by  the  trustees,  from  time  to  time,  paid 
to  the  son  on  his  proper  order  and  receipt,  '"subscribed 
with  his  own  proper  hand,  to  the  intent  that  the  same 
should  not  be  grantable,  transferable,  or  otherwise 
assignable,  by  way  of  anticipation  of  any  unreceived 

'  Twopenny  r.  Pcjton,  10  Sim.  487;  Leavitt  r.  Beirne,  21  Conn.  1;  Hall  r. 
WilUuiis,  r.:0  .Mam.  U4. 
'  18  V«.  Jr.  4J3. 


§1S0»  REAL  PROrERTY  SUBJECT  TO  EXECUTION.  640 

payment  or  ])ayiiu'nt>j,"  ami  that,  upon  his  dccoasc,  the 
principal  of  Ins  sliare  with  all  accrued  dividends  should 
Ix^  applied  hy  the  trustees  tt)  the  benefit  of  such  jicr- 
sons  as,  in  eourst^  of  administration,  would  he  (Militled 
to  his  personal  estate.  After  the  death  t)f  the  testator 
the  son  became  a  bankrupt,  and  the  surviving  assignee, 
under  the  commission  in  bankruptcy,  applied  for  the 
execution  of  the  trust  b}'  the  taking  of  an  account 
and  the  payment  to  him  of  the  son's  interest.  The 
Lord  ChancelK>r  Eldon  sustained  the  bill  of  the  assignee, 
saying:  "There  is  no  doubt  that  property  maybe  given 
to  a  man  until  he  shall  become  a  bankrupt.  It  is 
equally  clear,  generally  speaking,  that  if  property  is 
given  to  a  man«ior  his  life,  the  donor  cannot  take  away 
the  incidents  of  a  life  estate ;  and,  as  I  have  observed, 
a  disposition  to  a  man  until  he  shall  become  bankrupt, 
and  after  his  bankruptcy  over,  is  (juite  different  from  an 
attempt  to  give  to  him  for  his  life,  with  a  proviso  that 
he  shall  not  sell  or  alien  it.  A  like  decision  resulted 
from  an  annuity  which  trustees  were  directed  to  pay  to 
the  testator's  son  for  life,  the  testator  having  declared 
with  respect  to  such  annuity  that  it  was  intended  for 
the  personal  maintenance  and  support  of  the  son  during 
the  whole  of  his  life,  and  that  it  should  not  on  any 
account  be  subject  *  to  the  debts,  engagements,  charges, 
or  encumbrances  of  him,  my  said  son.'"^  The  case  of 
Snowden  v.  Dales'"  is  an  extreme  one.  An  assignment 
was  made  to  trustees  of  two  niortgage  sums  aggregat- 
ing two  thousand  pounds.  Of  this  sum  they  were 
directed  to  luM  eight  hundred  pounds  in  trust  during 
the  life  of  J.  I).  II.,  "or  during  such  part  thereof  as  the 
trustees  should  think  proper,  and  at  their  will    and 

>  Gravea  v.  Dolphin,  1  Sim.  CG.  =»  G  Sim.  525. 


541  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  lS9a 

pleasure,  but  not  otherwise,  or  at  such  other  time  or 
times,  and  in  such  sum  or  sums,  portion  or  portions,  as 
they  should  judge  proper  and  expedient,  to  allow  and 
pay  the  interest  of  the  eight  hundred  pounds  into  the 
proper  hands  of  the  said  J.  D.  H.,  or  otherwise  if  they 
should  think  fit,  in  procuring  for  him  diet,  lodging, 
wearing  apparel,  and  other  necessaries;  but  so  that  he 
should  not  have  any  right,  title,  claim,  or  demand  in 
or  to  such  interest,  other  than  the  trustees  should,  in 
their  or  his  absolute  and  uncontrolled  power,  discretion, 
and  inclination,  think  proper,  expedient,  and  so  that  no 
creditor  of  his  should  or  might  have  any  lien  or  claim 
thereon  in  any  case,  or  the  same  be,  in  any  way,  subject 
or  lialjle  to  his  debts,  dispositions,  or  engagements." 
The  will  further  provided  that  in  the  event  of  the  death 
of  J.  U.  H.,  leaving  a  widow,  the  trustees  should  pay 
the  interest  to  her,  and  after  the  decease  of  him  or  his 
widow,  the  eight  liundred  pounds,  and  all  accumulations 
thereof,  should  be  held  in  trust  for  the  benefit  of  his 
children.  It  was  held,  as  tliere  was  no  provision  made 
for  the  disposition  of  the  fund  to  some  other  person 
than  J.  D.  H.  during  his  lifetime,  that  his  interest 
tlierein  vested  in  his  assignee  in  bankruptcy.^ 

In  several  of  the  United  States  tiie  English  decis- 
ions upon  this  subject  have  been  followed  without  hes- 
itiition.  Thus  in  Smith  v.  Moore,'^  funds  devised  to  T. 
II.  S.,  in  trust  for  W.  G.  S.,  "  not  subject  to  any  debts 
he  may  have  contracted,  but  for  his  comfort  and  sup- 
port; and  sliould  he  depart  this  life  before  receiving 
the  same,"  then  to  b<!  ((jually  divided  with  testator's 
other  cliildren,  were  held  to   be  subject  to  a  bill  filed 

>  Sc'o  also  Younghuulmnd  v.  GiBborno,  1  ColL  C.  C.  400 j  Pago  r.  Way,  3 
Beav.  20. 

» .37  ^Ua.  327. 


§  ISlU  RF-AL  rROPKKTY   SUBJECT  TO  EXECUTION.  f)42 

l)V  the  oivilitcr-^  of  the  Ijenolicinrv.  A  liko  decision 
v.\is  protiounfcd  in  Oeorgfia,  whore  a  devise  liad  l)e(>n 
mnde  to  a  tinistee  of  properly,  to  he  niaiwp^ed  and  eon- 
trolled  by  liiin  Tor  the  use  and  benefit  of  testator's  son, 
who  was  restricted  "in  his  expenses  to  the  income  aris- 
in<x  iVt)n»  said  property/'  and  it  was  further  provided  in 
the  will  "that  said  propert}?-  shall  not  be  liable  for  the 
debts  or  contracts  of  testator's  said  son,  except  when 
made  and  entered  into  by  the  written  consent  of  the 
trustee.'"  The  states  of  California,  North  Carolina,*"^ 
South  Carolina,^  Rhode  Island,*  and  |)erhaps  ^Missouri,'^ 
are  also  conunitted  to  the  English  rule  that  a  del)tor 
cannot  retain  any  beneficial  interest  beyond  the  reach  of 
a  creditor's  bill.  Unless  it  is  limited  over  to  some  other 
beneficiary,  the  voluntary  and  involuntary  disposition 
of  it  cannot  be  inhibited.  Until  recently,  the  supreme 
court  of  the  United  States  entertained  like  views.  Mr. 
Justice  Swayne,  delivering  the  opinion  of  that  court 
in  Nichols  v.  Levy,"  thus  tersely  and  lucidly  ex^jressed 
them:  "It  is  a  settled  rule  of  law  that  the  beneficial 
interest  of  the  cestui  qui  {rust,  whatever  it  may  be,  is 
liable  for  the  payment  of  his  debts.  It  cannot  be  so 
fenced  about  by  inhibitions  and  restrictions  as  to  secure 
to  it  the  inconsistent  characteristics  of  right  and  en- 
joyment to  the  beneficiary,  and  immunity  from  his 
creditors.  A  condition  precedent  that  the  provision 
shall  not  vest  until  his  debts  are  paid,  and  a  condition 
subsequent   that  it  shall  be  divested  and  forfeited  by 

»  Gray  v.  Ohcar,  54  Ga.  231. 

'  Kcniie<ly  r.  Nunan,  52  Cal.  32G;  Mebane  v.  Mcbaiie,  4  IrcrL  Eq.  181;  44 
Am.  Dec.  102;  Pace  v.  Pace,  73  N.  C.  110. 

*  H.--ath  r.  Bishop,  4  Rich.  Eq.  4G;  55  Am.  Dec.  G.54. 

*  T.llingha«t  r.  Bradfor.l,  5  R.  I.  205. 

*  M.-Ilvainc  v.  Smith,  42  Mo.  45;  97  Am.  Dec.  295. 
•5  WaU.  4-n. 


543  KEAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  lS9a 

his  insolvencj^,  with  a  hmitation  over  to  another  per- 
son, arc  vahd,  and  the  law  will  give  them  full  effect. 
Beyond  this,  protection  from  the  claims  of  creditors  is 
not  allowed  to  go." 

But  the  views  thus  expressed  were  unnecessary  to 
the  decision  of  the  case  then  before  the  court,  and 
Vv'cre  not  entertained  by  that  great  tribunal,  when  at  a 
later  day,  and  doubtless  upon  more  mature  considera- 
tion, it  came  to  decide  the  case  of  Nicholls  v.  Eaton. ^ 
In  that  case,  too,  the  opinion  of  the  court  upon  this 
point  was  a  dktum, —  but  a  dictum  so  forcibly  ex- 
pressed as  to  leave  no  doubt  of  the  final  dissent  of  that 
court  from  the  decisions  of  the  English  courts  upon 
this  subject,  and  its  adherence  to  the  more  liberal  rules 
fir..t  pronounced  by  various  state  courts  in  different 
parts  of  the  Union.  Mr.  Justice  Miller  delivered  the 
opinion,  in  the  course  of  which  he  said  :  "  But  while 
M-c  have  thus  attempted  to  show  that  Mrs.  Eaton's 
will  is  valid  in  all  its  pa;:'ts,  upon  the  extremest  doc- 
trine of  the  English  chancery  court,  we  do  not  wish 
to  have  it  understood  that  we  accept  the  limitations 
which  that  court  has  placed  upon  the  power  of  testa- 
mentary disposition  of  property  by  its  owner.  We  do 
ncjt  see,  as  implied  in  the  remark  of  Lord  Eldon,  that 
the  power  of  alienation  is  a  necessary  incident  to  a  life 
estate  in  real  property,  or  that  the  rents  and  profits 
of  real  property,  and  the  interest  and  dividends  of 
personal  property,  may  not  be  enjoyed  by  an  indi\idual, 
without  liability  for  his  debts  being  attached  as  a 
necessary  incident  to  such  enjoyment.  This  doctrine 
is  one  which  the  English  chancery  court  has  ingrafted 
upon  the  common  law  for  the  benefit  of  creditors,  and 

»  91  U.  S.  T2o,  followe<l  in  Hyde  r.  Woods,  94  U.  S.  5'J3. 


§189*  HEAL   rUOPERTY   SUBJECT  TO  EXECUTION.  W4 

is  ooinparatis fly  t>r  nuHloni  <>ii';iu.  Wf  foiu'cnlo  that 
tliero  air  liinitatuMis  whicli  public  jxilicv  «>r  ^j^nicral 
statutes  iiiiposo  U[>(>n  all  dispositious  of  property,  such 
as  those  desiLjMid  to  ]>revent  pcMpetuitie;;  and  accuum- 
lations  of  real  estate  in  eorpoiations  and  eeelesiastieal 
boches.  We  al^o  admit  that  there  is  a  just  and  sound 
pohcy  peculiarly  ai>pro}triato  to  the  jurisdiction  of 
courts  t>f  eijuity,  to  pn)tect  creditors  ai^ainst  frauds 
upon  their  rii^lits,  whether  they  ho  actual  or  construct- 
ive frauds.  But  the  doctrine  that  the  owner  of  prop- 
erty, in  the  free  exercise  of  his  will  in  disposinj^  of  it, 
cannot  so  dispose  of  it,  but  that  the  object  of  his 
bounty,  who  parts  with  nothinuj  in  return,  nuist  hold  it 
subject  to  the  debts  due  his  creditors,  thoujj^h  that  may 
soon  deprive  him  of  all  the  benefits  sought  to  be  con- 
ferred by  the  testator's  affection  or  generosity,  is  one 
which  we  are  not  prepared  to  announce  as  the  doctrine 
of  this  court.  If  the  doctrine  is  to  be  sustained  at 
all,  it  must  rest  exclusively  on  the  rights  of  creditors. 
Whatever  may  be  the  extent  of  those  ricrhts  in  En<4- 
land,  the  policy  of  the  states  of  this  Union,  as  ex- 
pressed both  by  their  statutes  and  the  decisions  of 
their  courts,  has  not  been  carried  so  far  in  that  direc- 
tion. It  is  believed  that  ever}'-  state  in  the  Union  has 
passed  statutes  b}''  which  a  part  of  the  property  of  the 
debtor  is  exempt  from  seizure  on  execution  or  other 
process  of  the  courts;  in  short,  is  not  by  law  liable  to 
the  payment  of  his  debts.  This  exemption  varies  in  iti 
extent  hnd  nature  in  the  different  states.  In  some  it  ex- 
tends only  to  the  merest  ini}»lcments  of  household  neces- 
sity;  in  others  it  includes  the  library  of  the  professional 
man,  however  extensive,  and  the  tools  of  the  mechanic; 
and  in  many  it  embraces  the  homestead  in  which  the 


545  REAL  PROPERTY  SUBJECT  TO  EXECUTIOX.  §  lG9a 

family  resides.  This  has  come  to  be  considered  in  this. 
country  as  a  wise,  as  it  certainly  may  be  called  a  settled^ 
policy  in  all  the  states.  To  property  so  exempted  the 
creditor  has  no  right  to  look,  and  docs  not  look,  as  a. 
means  of  payment  when  his  debt  is  created;  and  while 
this  court  has  steadily  held,  under  the  constitutional 
provision  against  impairing  the  obligations  of  contracts. 
by  state  laws,  that  such  exemption  laws,  when  first 
enacted,  were  invalid  as  to  debts  then  in  existence,  it 
has  always  held  that  as  to  contracts  made  thereafter 
the  exemptions  were  valid.  This  distinction  is  well 
founded  in  the  sound  and  unanswerable  reason,  that 
the  creditor  is  neither  defrauded  nor  injured  by  the  ap- 
plication of  the  law  to  his  case,  as  he  knows,  when  he 
parts  with  the  consideration  of  his  debt,  that  the  prop- 
erty so  exempt  can  never  be  made  liable  to  its  payment. 
Nothing  is  withdrawn  from  this  liability  which  was 
ever  subject  to  it,  or  to  which  he  had  a  right  to  look 
for  its  discharge  in  payment.  The  anology  of  this  prin- 
ciple to  the  devise  of  the  income  from  real  and  })er- 
sonal  propert}^  for  life  .seems  perfect.  In  this  country,, 
all  wills  or  other  instrument.^  creatini::  such  trust, 
estates  are  recorded  in  {)ublic  oflices,  where  they  may 
be  inspected  ijy  every  one;  and  the  law  in  such  cases, 
imputes  notice  to  all  persons  concerned  of  all  the  facts 
which  they  might  know  by  the  in.^pection.  When, 
tlierefore,  it  ap[iears  by  the  record  of  a  will  that  the 
devi.see  holds  this  life  estate,  or  income,  dividends,  or 
rents  of  real  or  personal  property,  payable  to  liim 
alone,  to  the  exclusion  of  the  alienee  or  creditor,  tho 
latter  knows  that  in  creating  a  debt  with  such  person 
he  has  no  right  to  look  to  that  income  as  a  means  of 
discharging  it.     He  is   neither  misled   nor  defrauded 

Vol.  1.-35 


g  IS9»  RKAL  rUOPERTY   SUTVIECT  TO  EXECUTION.  WO 

^vhon  the  (»l)icHt  <>!'  Uw  testator  is  canicd  out  by 
oxi'lutlinEf  liitn  iVoin  ;my  luiiclit  (»!"  siuli  (lt\  i,s«'.  Nor  do 
we  see  any  reason,  in  (lie  r(>eo;^nize(l  natui»'  and  (ciiuro 
o{'  property,  and  its  transtcr  l>y  will,  why  a  testator 
wlu)  (jiccs,  who  jjfivt's  without  any  poeuniaiy  return, 
who  j^ets  nothinu^  of  property  value  from  the  donee, 
may  not  attaeh  to  that  p^ift  the  ineident  of  contiiuicd 
use,  of  uninterrupted  benefit  of  the  gilt,  during  the  life 
o\'  the  donee.  Why  a  parent,  or  one  who  loves 
another,  and  wishes  to  use  his  own  property  in  sceur- 
ing  the  object  of  his  all'ection,  as  far  as  property  can 
do  it,  from  the  ills  of  life,  tlie  vicissitudes  of  fortune, 
and  even  his  own  improvidence  or  incapacity  for  self- 
protection,  should  not  be  permitted  to  do  so,  is  not 
readily  perceived." 

It  remains  for  us  to  call  attention  to  the  American 
cases  announcing  and  sustaining  the  rule  to  which  the 
supreme  court  of  the  United  States  lias  yielded  its 
weighty  assent,  as  shown  in  the  foregoing  quotation. 
In  the  pioneer  case  upon  this  tropic,  a  father  directed  his 
executors  to  purchase  a  tract  of  land,  and  to  hold  the 
same  in  trust  for  his  son,  and  to  permit  the  son  to  have 
the  rents,  issues,  and  profits  thereof,  but  that  the  same 
should  not  be  lial^le  to  any  debts  contracted  or  which 
might  be  contracted  by  the  son,  at  wliose  death  the 
land  should  vest  in  his  heirs,  but  if  he  should  die  with- 
out heirs,  then  in  the  heirs  of  tlie  testator.  The  execu- 
tors purchased  a  tract  of  land,  and  took  a  conveyance 
to  themselves,  subject  to  the  trusts  specifie<l  in  the 
will.  Afterward  the  life  estate  of  the  son  was  levied 
ui)on  and  sold.  A  conveyance  was  made  pursuant  to 
the  sale,  and  the  purchaser  sought,  in  an  action  of 
ejectment,  to  recover  possession  of  the  pro[)crty.     His 


W7      REAL  PROPERTY  SUBJECT  TO  EXECUTION.    §  lS9a 

rijlit  of  recovery  was  denied,  on  the  broad  ground 
that  ''a  man  may,  midoubtedly,  so  dispose  of  his  land 
as  to  secure  to  the  object  of  his  bounty,  and  to  him 
exclusively,  the  annual  profits.  The  mode  in  which  he 
accomplishes  such  a  purpose  is  by  creating  a  trust 
estate,  explicitly  designating  the  uses,  and  defining  the 
power  of  the  trustees.  Nor  is  such  a  provision  con- 
trar}^  to  law  or  any  act  of  assembl}'-.  Creditors  can- 
not complain  because  they  are  bound  to  know  the 
foundation  upon  which  they  extend  their  credit."  ^  The 
principle  of  this  case  has  been  very  frequently  applied 
by  the  courts  of  the  same  state,  Pennsylvania;  but  it 
appears  to  be  essential,  to  bring  a  devise  or  bequest 
within  the  protection  of  the  rule  there  maintained, 
that  the  testator  in  his  will  either  prohibit  the  aliena- 
tion or  taking  in  execution  of  the  beneficial  interest,^  or 
vest  the  trustees  with  a  mere  discretion  to  pay  or  to 
withhold  the  fund  or  its  proceeds  as  they  may  deem 
j>r(>pcr.^  In  Kentucky,  a  testator  devised  his  estate  to 
trustees,  the  greater  portion  to  be  held  for  the  benefit 
of  his  grandchildren,  but  the  trustees  were  to  pay  to 
his  son  Robert,  during  the  lattcr's  life,  the  sum  of 
twenty-five  dollars  per  month  for  his  support.  An 
atti'm[)t,  made  by  creditor's  bill,  to  reach  Ilobcrt's  life 
estate  proved  futile,  because  the  court  construed  the 
tru.st  as  giving  Robert  no  absolute,  assignable  interest, 
but  merely  as  imposing  iq>oii  the  trustees  the  duty  of 

'  Fialjer  r.  Taylor,  2  Rawle,  .3.3.  Thia  ca.se  haa  been  ri|)eateilly  rcaflirmed. 
Vaiix  r.  Parke,  7  WattH  &  S.  '25;  Slianklaiid'n  Appeal,  47  Pa.  St.  113;  Over- 
man'«  Ai.p<-al.  SH  Pa.  St.  270;  Tliackara  r.  Mintzcr,  KM)  Pa.  St.  l.')l. 

'  (iiranl  Life  Iiib.  Co.  r.  Cliamlwr.i,  4<i  Pa.  St.  4S.");  KG  Am.  Dec.  513. 

*  Kuyiter  r.  Mitdiell,  07  Pa.  St.  473.  A  inan'H  frieml.s  may  rainc  a  fund  and 
place  it  in  Uin  control  for  tho  purpoHo  of  cngaj^in^  in  buHiuuHH,  to  cnablu  him 
t<t  iiuppf>rt  hill  family,  and  if  he  accepts  hucIi  fundd  and  makea  a  profit  thereon, 
they  aro  not  aubjoct  to  cxccntioa  ogaimtt  him.  lloldnhip  v.  Patttiraon,  7 
WatU,  &47. 


§  lS9a  IIKAL   rUOPEKTY    SUIUECT  TO  EXECUTION.  5J3 

usin;^  the  amount  clesi<j^na((Ml  for  his  suppoit.  antl  l)e- 
causo  tlio  prini'iph's  of  o(jiiity  "do  not  suhjcct  the 
father's  property  to  the  debts  of  tlic  son,  nor  give  to 
the  creditors  of  the  son  any  ripjht  to  complain  that  the 
father  has  not  left  or  i)laeed  his  property  within  tlieir 
reach."  *  In  Connecticut,  a  testator  devised  and  be- 
queathed his  estate  to  his  sons  and  daughter,  but  in- 
serted in  the  will  the  following  condition:  "All  and 
every  of  the  property  given  to  my  daughter  is  i'or  the 
exclusive  benefit  of  her  and  her  children,  free  from 
the  debts  and  control  of  her  husband ;  and  to  secure  the 
same  to  their  unimpaired  enjoyment,  I  hereby  give 
the  same  to  my  sons,  George  P.  Beirne  and  Oliver 
Beirne,  with  full  authority  to  apply  the  property  as  to 
them  shall  seem  best,  for  their  exclusive  benefit,  during 
the  life  of  my  said  daughter,  and  after  her  decease,  to 
divide  the  same  equally  among  her  children."  A  bill 
was  filed  in  chancery  to  compel  the  payment  of  a 
promissory  note  executed  by  the  daughter  out  of 
moneys  held  by  the  sons  as  trustees  under  the  will. 
The  bill  was  dismissed,  the  majority  of  the  court  main- 
taining the  right  of  a  parent  to  place  funds  in  the 
hands  of  trustees  to  be  used  for  the  benefit  of  a  child, 
and  not  subject  to  alienation,  whether  voluntary  or 
compulsory.^ 

»  Pope's  Ex'rs  v.  Elliott,  8  B.  Moa.  56. 

*  Leavitt  V.  Boirne,  21  Conn.  ];  Easterly  v.  Keney,  36  Conn.  18.  The 
clause  in  the  will  here  involved  M'as  as  follows:  "I  give  ami  devise  to  my 
friend,  Henry  Keney,  a  three-fifths  jiart  of  the  brick  house  and  lot  next  ad- 
joining St.  John's  Hotel,  to  him  and  his  heirs  forever,  in  trust,  however,  for 
my  nephew,  Albert  W.  Goodwin  of  Wetliersfield;  and  I  do  hereby  order  and 
direct  said  trastee  to  pay  said  AUiert  W.,  and  this  devise  is  for  the  purpose  of 
securing  to  said  All>ert  W.  the  rents,  use,  and  benefits  of  said  devise,  exclu- 
sive of  all  other  persons.  Said  trustee  is  hcrel)y  directed  to  pay  to  said 
Allxjrt  W.,  or  to  his  written  onler,  made  annually,  the  rents,  profits,  and 
issues  of  said  building  hereby  devised,  and  this  devise  is  not  to  inure  h\  any 


549  REAL  PEOPERTY  SURTECT  TO  EXECUTION.  §  189  a 

In  Virginia,  lands  were  devised  to  a  trustee  for  the 
benefit  of  "Henrietta  F.  Handlcy,  then  the  wife  of 
Alexander  W.  Handlcy,  and  her  family.  The  trustee 
was  directed  so  to  use  and  conduct  tlie  farm  or  plan- 
tation as  to  be  most  advantageous  to  the  interests  and 
support  of  said  Henrietta  F.  and  her  children  during 
the  lifetime  of  said  Henrietta."  On  a  suit  in  equity 
bcins'  instituted  to  reach  the  interest  of  the  wife  and 
apply  it  to  the  satisfaction  of  her  creditors,  it  was  held 
that  it  was  competent  for  the  testatrix  to  provide  a  fund 
for  the  support  of  her  daughter  and  the  latter's  chil- 
dren, and  the  fund  not  being  shown  to  be  in  excess 
of  what  was  needed  for  such  support,  the  bill  must  be 
dismissed/  In  the  same  state,  one  PlatofF  Zane,  on 
becoming  possessed  by  inheritance  of  a  vast  estate,  con- 
tracted in  a  little  over  a  year  liabilities  exceeding  fifty 
thousand  dollars,  and  his  friends,  foreseeing  that  his 
extravagances  and  business  incapacity  would  soon  re- 
duce him  and  his  family  to  want,  prevailed  upon  him  to 
execute  a  deed  of  trust.  By  this  deed  all  his  property 
was  conveyed  to  trustees,  with  ample  powers  to  take 
possession  thereof  and  to  sell  and  dispose  of  the  same, 
and  out  of  the  proceeds  to  pay  all  existing  creditors  of 
the  grantor  and  the  expenses  of  the  trust.  After  these 
debts  and  expenses  should  be  paid,  the  residue  of  the 
property  was  to  be  employed  in  purchasing  a  residence 

manner  for  the  use  and  benefit  of  any  creditors  of  said  Albert  VV.,  but  is 
horcljy  intende*!  to  bo  for  tho  only  use  and  benefit  of  said  Albert  W.,  and  for 
such  use  anil  purpose  only  as  he  shall  annually  a[)point."  An  execution  was 
levied  on  the  lands  devised,  and  tiie  levy  was  held  inoperative.  The  court, 
however,  was  of  the  opinion  that  tlie  i)eneficiary  had  a  vested  interest  i:i  tho 
moneys  in  tlie  hands  of  tiie  trustee,  and  that  such  moneys  were  subject  to  at- 
tachment. The  courts  of  this  st'ite  have,  therefore,  proceeded  no  further  than 
t<»  hold  that  wiiere  tlio  trustees  are  vested  with  a  discretion  to  pay  or  withhold 
the  moneys,  tliey  will  not  control  such  discretion  in  the  interest  of  creditoru. 
'  Nickell  r.  Ilandly,  lOGratt.  330. 


§lS9ik  RKAL  PROPKRTY  SURIECT  TO   EXECUTION.  n.'O 

forZauo  aiulliis  wifi'.aiul  in  iiialJii;^  iiivo^t  incuts  in  hank 
sUk'Us  aiul  othor  !4;(um1  sccuritios.  Tlio  iucomt'  dorivfd 
from  the  stooks  ami  si'ourit'u'S  was  to  l)o  applied  to  the 
suppiirt  ofZanoand  wito  duritiu:  their  lives  and  the  life 
of  the  survivor,  and  at  the  d(>ath  of  tlie  survivor  was 
to  iTo  to  their  ileseendantsand  hi-irs.  A  Mil  in  chanccrv 
wasliled  l»y  a  ereditor,  whose  debt  aecrued  subse(juently 
to  the  date  of  the  deed,  whereby  he  sought  to  assail 
the  deed  as  iVaudulent,  and  to  eonipel  the  trustees  to 
pay  such  debt  out  of  the  trust  property.  The  court 
detenuin((l  that  the  deed,  because  it  [>rovided  for  all 
the  existiui^  debts  of  the  grantor,  could  not  bo  justly 
regarded  as  fraudulent,  in  the  absence  of  any  actual  or 
express  IVaudulent  intent  on  the  part  of  the  grantor, 
and  that  the  interest  reserved  by  the  deed  to  the 
grantor,  being  merely  a  right  to  support  and  mainte- 
nance during  life,  was  not  subject  to  creditor's  bill.*  A 
testator  devised  certain  real  estate  ui)on  the  follow- 
ing trusts:  "To  keep  said  lands  and  tenements  well 
rented;  to  make  reasonable  repairs  upon  the  same;  to 
pay  promptly  all  taxes  and  assessments  thereon;  to 
keep  the  buildings  thereon  rea.sonably  insured  against 
damages  by  fire;  to  pay  over  all  remaining  rents  and 
income  in  cash  into  the  hands  of  my  said  daughter, 
Juliet,  in  [)erson,  and  not  ui>oii  any  written  or  verbal 
order,  nor  u[)on  any  a.ssignment  or  transfer  by  the  said 
Juliet.  At  the  death  of  the  said  Juliet,  said  trust 
estate  shall  cease  and  be  determined,  and  the  said  lands 
shall  vest  in  the  heirs  of  the  body  of  the  said  Juliet, 
and  in  default  of  such  heirs,  shall  descend  to  the  heirs 
of  mv  body  then  living,  according  to  the  laws  of  Illi- 
nois then  in  force  regulatin*'  descents."     Alter  the  will 

*  Johnaton  r.  Zouc,  11  Gratt.  552. 


551  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  lS9a 

had  been  probated,  and  moneys  had  come  into  the  hands 
of  the  trustees,  to  which  the  daughter,  JuUet,  was  en- 
titled, such  funds  were  attempted  to  be  attached  by 
her  creditors.  The  court  conceded  that  upon  an 
absolute  conveyance  or  gift  there  could  not  be  annexed 
conditions  and  limitations  which  would  "defeat  or 
annul  the  legal  consequences  of  the  estate  transferred," 
but  added:  "But  while  this  unquestionably  is  true,  it 
does  not  necessarily  follow  that  a  father  may  not,  by 
will  or  otherwise,  make  such  reasonable  disposition  of 
his  property,  when  not  required  to  meet  any  duty  or 
obligation  of  his  own,  as  will  efiectually  secure  to  his 
child  a  competent  support  for  life ;  and  the  most  ap- 
propriate, if  not  the  only,  way  of  accomplishing  such  an 
object  is  through  the  medium  of  a  trust.  Yet  a  trust, 
however  carefully  guarded  otherwise,  would,  in  many 
cases,  fall  far  short  of  the  object  of  its  creation,  if  the 
father  in  such  case  has  no  power  to  provide  against  the 
schemes  of  design ing  persons,  as  well  as  the  improvi- 
dence of  the  child  itself.  If  the  beneficiary  may  antici- 
pate the  income,  or  absolutely  sell  or  otherwise  dispose 
of  the  equitable  interest,  it  is  evident  the  whole  object 
of  the  settler  is  liable  to  be  defeated.  If,  on  the  other 
hand,  the  author  of  the  trust  may  say,  as  was  done  in 
this  case,  the  net  accumulations  of  the  fund  shall  be 
paid  only  into  the  hands  of  the  beneficiary,  then  it  is 
clear  the  object  of  the  trust  can  never  be  wholly  de- 
feated. Whatever  the  reverses  of  fortune  may  be,  the 
child  is  provided  for,  and  is  effectually  placed  beyond 
the  reach  of  unprincijiled  schemers  and  sharp(>r8,"^ 
In  Tenne.s.see  and   New  York  the  question  has  been 

'  StcJb  f.  Wliitche:i(l,  111  111.  249.  Like  reasoning  prevailed  in  Wallace 
r.  Camplxsll.  53  Tex.  229;  White  v.  White,  30  Vt.  338;  Arwiuu  r.  Carroll,  4 
Ilaldt.  Cli.  020. 


§  ISOd  RE.VL  PROPERTY  SUBJECT  TO  EXECUTION.  652 

settled  by  stiitutes,  whieh,  in  substance,  exclude  from 
proceediuLijs  in  equity  to  reiicli  beneficial  interests  all 
cases  where  the  trust  has  been  created  by,  or  the  fund 
lield  in  trust  has  proceeded  from,  some  jierson  other 
tlian  tlie  debtor/  ^vilh  the  limitation  in  the  last-named 
state  whirli  rnablrs  a  creditor  to  roach  any  jiortion  of 
a  trust  funtl  "beyond  the  sum  that  may  \k)  necessary 
for  the  education  and  support  of  the  i)er.son  for  who.sc 
benefit  the  trust  is  created.""^  It  is  no  objection  to  the 
validity  of  a  devise  under  these  statutes  that  the  bene- 
ficiary is  also  one  of  the  trustees  of  tlie  fund,  if  there 
are  other  trustees  competent  to  act,  and  the  income  of 
the  fund  cannot  be  applied  to  the  use  of  the  beneficiary 
without  the  concurrence  of  the  other  trustees.^ 

A  wife  devised  and  bequeathed  her  property  to  a 
trustee,  to  hold  for  the  sole  use  and  support  of  her  hus- 
band, with  power  to  sell  or  exchange  the  property  and 
to  reinvest  the  proceeds.  The  trustee  was  required  to 
exact  the  written  receipt  or  assent  of  the  husband  in 
every  instance  in  which  he  paid  moneys  to  him  or  sold 
or  exchanged  property,  and  was  directed  to  convey  any 
part  of  the  testator's  estate  "  to  such  associations,  per- 
son, or  persons  as  her  husband  might  designate  by 
written  authority."     The  interest  of  the  husband  was 

»  Hooberry  v.  Harding,  3  Toiin.  Ch.  G77;  Campbell  v.  Foster,  35  N.  Y.  366; 
Bramhill  v.  Ferris,  14  N.  Y.  41;  07  Am.  Dec.  113. 

^  Williams  r.  Thorn,  70  N.  Y.  270;  Sillick  v.  Mason,  2  Barb.  Ch.  79;  Graflf 
r.  Bonnett,  31  N.  Y.  9;  88  Am.  Dec.  236.  In  Hallett  v.  Tiionipson,  5  Paigo, 
58.3,  Chancellor  Walworth  showeJ  an  inclination  to  follow  the  English  chan- 
cery decidiona,  and  to  hold  that  "an  attempt  to  give  to  the  legatee  an  abdoluto 
and  uncontrollable  interest  in  personal  estate,  and  at  the  same  time  to  prevent 
ita  1>eing  subject  to  the  usual  incidents  of  such  an  absolute  right  to  property, 
8o  far  as  the  rights  of  creditfirs  are  concerned,"  must  bo  tliwarted  in  a  court  of 
chancery.  See  also  Cluto  v.  Bool,  8  Paige,  82;  Degraw  v.  Clason,  11  Paige, 
1.3G. 

»  Wetmore  v.  Truslow,  51  N.  Y.  338. 


553  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  100 

adjudged  to  be  clearly  subject  to  a  bill  filed  by  bis 
creditors,  for  the  following  reasons:  "No  other  person 
is  named  in  the  will  as  a  cestui  que  trust,  either  during 
the  life  of  the  husband  or  after  his  death;  no  accumu- 
lation of  income  is  provided  for  or  contemplated;  nor  is 
any  disposition  made  of  the  remainder  after  his  death 
ill  case  of  his  not  exercising  the  power  conferred  on 
him;  and  no  restrictions  wliatever  are  imposed  by  the 
will  or  committed  to  the  discretion  of  the  trustee  as  to 
the  amount  of  principal  or  income  that  the  husband 
may  receive,  or  the  uses  to  which  he  may  apply  them."^ 

§190.  Mortgagor's  Estate.  —  A  mortgage  at  com- 
mon law  operated  as  a  conveyance  of  the  legal  title, 
and  left  the  mortciaii^or,  whether  he  continued  in 
possession  or  not,  the  owner  of  a  mere  equity.  The 
legal  title  of  the  mortgagee  was  defeasible,  and  upon 
payment  of  the  mortgage  debt  was  extinguished;  or, 
more  properly  speaking,  the  conveyance  embraced 
within  the  terms  of  the  mortffa£i0  became  null  and 
void  upon  the  satisfaction  of  the  debt  due  the  mort- 
gagee. But  during  the  continuance  of  the  mortgage, 
it  is  clear,  upon  common-law  principles,  that  the 
mortgag(jr,  as  he  was  possessed  of  a  mere  cquit}^  had 
no  estate  subject  to  execution.  Nor  was  the  statute 
of  29  Charles  II.,  authorizing  the  interests  of  certain 
classes  of  ccsiabi  que  trust  to  be  taken  under  an  elegit 
at  all  applicable  to  mortgagors.  In  fact,  it  is  clear 
that  that  statute  could  not  reach  any  case  in  which 
the  holder  of  the  legal  title  had  any  beneficial  interest 
therein.  It  (operated  only  in  those  cases  where  the 
cedai  que  trust  had  the  whole  ijeneficial  interest,  with 

>  Sparliawk  r.  Coon,  140  Maaa.  207. 


§  IM  REAL  PROrERTY  SUBJECT  TO  EXECUTION.  654 

the  ri<:^lit  to  insist  ujioii  an  iuunodiato  conveyanco  to 
him  ot*  the  legal  estate.  As  neither  the  common  law 
nor  this  statute  extended  to  equities  of  re(lenn)tion,  it 
was  clear  that  up»)n  legal  principles  a  mortgagor's 
esUite  was  not  subject  to  execution.  These  legal  prin- 
ciples were  ae(|uie.:>ced  in  in  JOnglaiid,  iiiul  in  some 
portions  ot*  the  United  States.^  But  in  equity  the 
mortgage  was  ti'eated  according  to  the  real  intention 
of  the  parties.  It  was  held  to  be  a  mere  security  for 
the  payment  of  money,  and  all  the  rights  of  the  mort- 
gagor were  carefully  protected.  Cy  the  usual  terms 
of  mortgages,  the  mortgagor  was  to  continue  in  tlic 
possession  and  in  the  enjoyment  of  his  lands  until 
after  default  was  made  in  the  payment  of  the  debt, 
lie  was  not  allowed  to  commit  waste,  nor  otherwise 
to  depreciate  the  value  of  the  mortgagee's  security; 
but  in  other  respects  he  was  regarded  as  the  owner  of 
the  propert}'.  His  equity  of  redemption  could  be 
aliened,  entailed,  mortgaged,  and  devised.  In  the 
United  States,  the  fact  that  the  mortgagor  was,  for  so 
many  purposes,  entitled  to  all  the  advantages  of  uncon- 
ditional ownership  has  had  its  influence  in  determining 
his  legal  s'.atus.  Except  as  between  himself  and  his 
mortgagee,  he  came  to  be  regarded,  even  in  law,  as 
the  owner  of  the  property.  Hence,  in  the  vast  major- 
it3'  of  the  states,  his  equity  of  redemption,  or  in  other 
words,  all  his  rights  under  the  mortgage,  may,  at  law, 
be    taken  and   sold  or  extended   under  an   execution 

'  Van  Nesa  ?•.  Hyatt,  13  Pet.  2'J4;  Combs  ?•.  Young,  4  Ycrg.  218;  26  Am. 
Dec.  225;  Cantzoa  v.  Dorr,  27  Mis's.  246;  IJoarman  v.  Catlett,  1.3  Smedes  &  M, 
149;  Thomhill  v.  Gilmer,  4  Smedes  &  M.  1.33;  Henry  v.  Fullerton,  13  Smedes 
&  M.  631;  M:irlow  V.  Johnson,  31  Miss.  128;  Allison  v.  Gregory,  1  Murph. 
333;  Hill  r.  Smith,  2  McLean,  446;  Watson  on  Sheriffs,  209;  Plunket  v.  Pen- 
son,  2  Atk.  290;  Scott  v.  Scholey,  8  East,  407,  480;  Lyster  v.  Dollard,  1  Ves. 
Jr.  431;  4  Bro.  C.  C.  478. 


555  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §191 

against  him/  In  Mississippi,  where  the  common-law 
rule  is  still  in  force,  a  mortgagor's  interest  may  be  sold 
under  execution  when  the  mortgage  was  given  to  se- 
cure a  contingent  liability,  and  reserved  the  right  to 
continue  in  possession  r  also  when  the  mortgage  debt 
has  been  paid,  but  satisfaction  has  not  been  entered.* 
In  Xew  Jersey  the  mortgagor  has  no  estate  subject 
to  execution  after  the  mortgagee  has  entered  for  con- 
dition broken.*  The  rule  is  otherwise  in  New  York, 
and  the  mortgagor's  equity  of  redemption  may  bo 
levied  upon  until  after  it  has  been  foreclosed.^ 

§  191.  The  Sale  of  the  Mortgagor's  Equity  of  Re- 
demption, under  a  judgment  at  law  for  the  mortgage 
debt,  has  always  been  regarded  with  disfavor.  In 
some  states  it   has   been  forbidden  by  statute,^  and, 

'  Bernstein  v.  Humes,  60  Ala.  582;  31  Am.  Rep.  52;  Kelly  v.  Longshore,  78 
Ala.  208;  Baker  r.  Clepper,  26  Tex.  629;  84  Am.  Dec.  591;  De  la  Vega  v.  League, 
64  Tex.  203;  Kelly  v.  Burnham,  9  N.  H.  20;  Camp  v.  Coxe,  1  Dcv.  &.  B.  52; 
Crooker  v.  Frazier,  52  Me.  405;  Wootton  v.  Wheeler,  22  Tex.  338;  Punderson 
f.  Brown,  1  Day,  93;  2  Am.  Dec.  53;  Franklin  v.  Gorham,  2  Day,  142;  2  Am. 
Dec.  86;  Harwell  v.  Fitts,  20  Ga.  723;  Commissioners  v.  Hart,  1  Brcv.  492; 
AUya  r.  Burhank,  9  Conn.  151;  Fitch  i\  Pinckanl,  4  Scam.  69;  State  v.  Laval, 
4  McCnrd,  3:50;  Halsey  r.  Martin,  34  Cal.  81;  Finley  v.  Thayer,  42  HI.  350; 
Foster  v.  Potter,  37  Mo.  525;  Watson  v.  Gregory,  6  Blackf.  113;  Dougherty  v. 
Liuthicum,  8  Dana,  198;  Mclsaacs  v.  Hobbs,  8  Dana,  268;  Gushing  ?.-.  Uurd, 
4  Pick.  253;  16  Am.  Dec.  335;  Reed  v.  Bigelow,  5  Pick.  280;  Washburn  r. 
Goodwin,  17  Pick.  137;  Johnson  r.  Stevens,  7  Cush.  431;  Waters  r.  Stewart, 
1  Caiues  Cas.  47;  Phelps  v.  Butler,  2  Oliio,  224;  Farmers'  Bank  r.  Commercial 
Bank,  10  Ohio,  71;  Asay  v.  Hoover,  5  Pa.  St.  35;  45  Am.  Dec.  713;  Tiffany  v. 
Kent,  2(;ratt.  231;  Pliyfe  v.  Riley,  15  Wend.  248;  Taylor  v.  Comeliu.s,  63  Pa. 
St.  187;  Stewart  v.  Crosby,  50  Me.  130;  Trimm  v.  Marsh,  54  N.  Y.  599;  13 
Am.  Rep.  023;  }I.;ind)ergcr  v.  Boyd,  18  In.l.  420;  Beers  ?•.  Bottsford,  13  Conu. 
146;  Dunbar  r.  Starkoy,  19  N.  H.  160;  Livcrmorc  r.  Boutelle,  11  Gray,  217; 
71  Am.  Dec.  708;  Hulett  v.  SouUard,  26  Vt.  295;  Capen  v.  Doty,  13  Allen,  262; 
Cowka  r.  Dickinson,  140  Mass.  373;  Byrd  v.  Clarke,  52  Miss.  623. 

*  Huntington  v.  Cotton,  31  Miss.  253. 

»  Wolfo  r.  Dowell,  13  Smedes  &  M.  103. 

*  Ketchum  r.  John.son,  3  Green  Ch.  370. 
'Trimm  r.  Marsh,  3  Uns.  509. 

'G.de  r.  H.'iiMiii<»nd,  45  Mich.  107;  Preston  t».  Ryan,  45  Mich.  174;  Linvillo 
V.  Bell,  47  Ind.  547. 


§  IDl  RKAL  ITa^rKUTY   SUaiKA"!'  TO  EXECUTION.  866 

when  iniulc,  has  bocii  dcihiivil  voiil.'  IiuJrjJi'iuK'nt  of 
stitutoiy  consitloratitnis,  it  has  »:joiK'rally  Ikvm  declared 
iiu»i)erativo;  w  if  allcwid  any  rfl'cct,  has  hi'on  so  re- 
stricted and  confined  as  to  prevent  its  operation  from 
working  injustice  to  the  niortgiv^or."  It  seems  to  bo 
concrdcd  that  tlio  mortj^agee  may  sue  at  law  ft)r  his 
(K  lit.  J\v  so  doin;^,  he  elects  to  pursue  otlnT  prop- 
iMty  thau  that  mort;j;aL]^ed  to  him.  JIc  will  not  bo 
allowed  to  sell  the  etjuity  of  redemption,  ami  at  the 
s;uue  tiuie  to  retain  his  title  under  the  mortgage.  His 
attem})t  to  do  so  is  always  regarded  as  o[ipressivc. 
"The  true  and  only  remedy  for  all  this  mischief  is  to 
prevent  such  sales;  and  I  think  1  shall  bo  inclined,  if 
the  case  should  arise  hereafter,  to  prohibit  the  mort- 
g  iQCC  fromj^rocccdiiir/  at  law  to  sell  the  equity  of  redemption. 
He  ought,  in  every  case,  to  be  put  to  his  election  to 
proceed  directly  on  the  mortgage,  or  else  to  seek  other 
2^roperlij,  or  the  person  of  the  debtor,  to  obtain  satis- 
faction for  his  debt.  I  sec  no  other  w^ay  to  prevent  a 
sacrifice  of  the  interest  of  the  mortL(ao;or:  and  it  is 
manifestly  equitable  that  the  mortgagee  be  compelled 
to  deal  with  his  security,  so  as  not  to  work  injustice."^ 
The  courts  are  by  no  means  unanimous  in  their  judg- 
ments respecting  tlie  effect  of  the  sale  of  UK^rtgaged 
premises  under  a  judgment  at  law  for  the  mortgage 

>  Dcbplaine  v.  Hitchcock,  G  Hill,  14. 

'  (Ireoiiwich  Bank  r.  Looinis,  2  Saiulf.  Cli.  70;  Atkins  r.  Sawyer,  1  Pick. 
351;  11  Am.  Dec.  188;  Camp  v.  Coxe,  1  Dev.  &  li.  W;  Simpson  r.  Simpson,  93 
N.  C.  373;  Deaver  r.  Parker,  2  Ircl.  Eq.  40;  Wa.shbum  r.  Cioodwin,  17  Pick. 
1.37;  Trimm  v.  Marsli,  3  Lans.  509;  Waller  v.  Tato,  4  B.  Mon.  529;  Powell  v. 
WilliamH,  14  Ala.  47G;  48  Am.  Dec.  105;  Barker  r.  Bell,  .37  Ala.  358;  Baldwin 
r.  .Jenkin.",  23  Miss.  20«j;  Bronstoii  r.  Rfihinson,  4B.  Mon.  112;  <  coring  »'•  Shrevo, 
7  iJana,  W;  IVi.inull  r.  Henry,  l.'J  llow.  Pr.  142;  Loomis  v.  Stuyveaant,  10  Paige, 
4'JO;  Tljompson  v.  Parker,  2  Jones  Etj.  475;  Buck  v.  Sherman,  2  Doug.  (Miaa.) 
17G;  Thornton  r.  Pigg,  24  Mo.  219. 

•  Tico  V.  Annim,  2  Johns.  Ch.  130. 


557  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  191 

debt.  If  the  levy  and  sale  are  to  be  regarded  as  oper- 
ating only  upon  the  equity  of  redemption,  to  sustain 
and  enforce  them  would  create  great  confusion  and  in- 
justice. In  that  event,  the  sale  would  be  subject  to 
the  vcrv  claim  or  debt  for  the  satisfaction  of  which  it 
is  made,  and  the  right  of  redemption  might  sell  for  a 
sum  sufficient  to  pay  the  debt  while  the  mortgage 
would  remain  in  apparent  force.  If  the  interest  of  the 
mortgagee  be  regarded  as  a  mere  lien,  he  may,  unless 
prohibited  by  statute,  waive  it.  His  recovering  judg- 
ment at  law  for  the  mortgage  debt,  and  levying  upon 
and  selling  the  mortgaged  premises,  may  with  great 
propriety  be  construed  as  an  irrevocable  election  to 
waive  the  lien.  Where  this  construction  prevails,  a 
sale  of  such  premises  may  properly  be  allowed,  by  giv- 
iDcr  it  effect  as  a  transfer  of  the  interest  both  of  the 
mortgagor  and  the  mortgagee.^  A  mortgagee  may 
levy  upon  and  sell  the  mortgaged  premises  upon  an 
execution  for  a  debt  distinct  from  that  secured  by  the 
mortgage.-  A  mortgage  may  be  made  to  secure  two  or 
more  netrotiable  notes.  In  this  event,  the  indorsee  of 
any  of  these  notes  may  bring  an  action  at  law  thereon 
against  the  mortgagor,  and  may  sell  his  equity  of 
redemption  in  satisfaction  of  the  judgment.^  If,  how- 
ever, the  mortjjaijce  assi<j:ns  the  mortnracfe  to  the 
indorsee  of  the  note,  he  becomes  substituted  to  the 
disaljility  of  the  mortgagee,  and  cannot  sell  the  equity 

'  CoggHwcll  ('.  Warren,  1  Curt.  223;  Porter  i'.  King,  1  (Trcenl.  297;  Crooker 
V.  Frazier,  52  Me.  40.');  ForHytli  r.  Pv.owcll,  59  Me.  1.31;  You.se  r.  McCrcary,  2 
Blackf.  24.'};  rosilick  r.  Uwk,  l.'jOhi...  84;  45  Am.  Dec.  502;  HoUisterr.  Dillon, 
4  Oiiio  St.  197;  Fitliiau  r.  Corwin,  17  Ohio  St.  118;  Pierce  v.  Potter,  7  Watta, 
475. 

»Cu8hingr.  Hiir.l,  4  Pick.  2.')n;   10  Am.  Dec.  335. 

•Crane  r.  March,  4  Pick.  I'M;  Hi  Am.  Dec.  329;  Audrewa  v.  Fi.skc,  101 
M«M.  422. 


§  v.y:         ki:al  property  surtkct  to  execution.  868 

of  redcmptiiMi  iimlrr  a  jiulij^inont  at  law  i'ov  n  part  of 
the  inorti^aL^e  debt*  A  inortL^aLCcc  may,  in  Massachu- 
setts, soil,  UiuliT  a  ju(l;^iiu'nt  lor  liis  »lcl»t,  tlic  iiiort- 
<ni':jor's  oijuitv  o\'  rcdvmi^tum  in  a  second  «)r  junior 
inort'i-aL^c."  In  Oregon,  the  levy  upon  and  sale  of  the 
inortL^aged  ])reniises  under  a  judj^nient  at  law  for  the 
nun't'^aged  debt  are  not  void."'  Whether  such  sale  is 
voidable  by  some  motion  or  jH-eceding  taken  in  the 
interest  of  the  mortgagor  was  not  determined. 

S  192.  Interest  of  Grantor  and  Grantee  of  a  Deed 
Intended  as  a  Mortgage.  —  There  are  various  convey- 
ances which,  though  not  mortgages  in  form,  are  never- 
theless designed  toaccompUsh  the  same  purpose.  The 
question  arises,  whether  the  grantor  in  such  a  convey- 
ance retains  an  interest  sul)jeet  to  execution,  in  those 
states  where,  though  tHpiitablc  titles  arc  exempt,  the  in- 
terests of  inortfratjors  are  hable  to  execution.  In  Oliio 
and  Alabama  it  has  been  held  that  the  grantor  in  a  deed 
of  trust  has  no  estate  vendible  under  an  execution  at  law.* 
So  in  Ohio  and  Georgia,  if  a  deed  absolute  on  its  face 
is  given  and  accepted  as  a  mortgage,  the  grantor's  in- 
terest cannot  be  levied  upon  at  law."  But  the  more 
reasonable  rule  under  such  circumstances  is,  that  the 
creditors  of  the  parties  are  entitled  to  treat  their  rela- 
tion as  that  of  mortgagor  and  njortgagee ;  and  therefore 
that  they  may  levy  an  execution  against  the  former,  and 
not  against  the  latter." 

'  Washburn  v.  Goodwin,  17  Pick.  137. 

*  Johnsoa  v.  Stevens,  7  Cush.  431. 
»  Matthews  r.  E.Idy,  4  Or.  225. 

*  Morria  r.  Way,  IG  Ohio,  4G!);  Thompson  ?•.  Thornton,  21  Ala.  808;  Like  v. 
Mitchell,  2  Yerg.  400. 

'-  lUipl  r.  Kirtland,  8  Ohio,  21 ;  Loring  v.  Mellciidy,  1 1  Ohio,  355;  Phimzy 
r.  Clark,  G2  Ga.  G2.3;  Groves  >:  Willianw,  G9  Ga.  G14. 

«  Fred.:rickii  r.  Corcoran,  100  Pa.  St.  413;  Clark  v.  Wat.wn,  111  Mass.  248; 
Newhall  v.  Burt,  7  Pick.  150;  Second  Ward  Bank  v.  Upuiann,  12  Wia.  499. 


559  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §  193 

§  193.  A  Purclis,Eer  at  an  Enecution  Sal3  "obtains 
an  inchoate  riglit,  which  ma_y  be  perfected  into  a  per- 
fect title,  without  any  further  act  than  the  execution 
of  a  deed,  in  pursuance  of  a  sale  already  made.  It  is 
not  a  mere  right  to  have  a  certain  sum  charged  upon 
the  property  satisfied  out  of  it.  The  sum  before 
charged  upon  the  land  lias  already  been  satisfied  by 
the  sale  to  the  extent  of  the  amount  bid  by  the  pur- 
chaser. The  purchaser  has  already  bought  the  land 
and  paid  for  it.  The  sale  is  simply  a  conditional  one, 
which  may  be  defeated  by  the  payment  of  a  certain 
sum,  by  certain  designated  parties,  within  a  certain 
limited  thue.  If  not  paid  within  the  time,  the  right  to 
a  conveyance  becomes  absolute,  without  any  further 
sale,  or  other  act  to  be  performed  by  anybody.  The 
purchaser  acquires  an  equitable  estate  in  the  lands, 
conditioned,  it  is  true,  but  which  may  become  absolute 
by  simple  lapse  of  time,  without  the  performance  of 
the  only  condition  which  can  defeat  the  purchase.  The 
legal  title  remains  in  tlie  judgment  debtor,  with  the 
further  right  in  him,  and  his  creditors  having  subse- 
quent liens  to  defeat  the  operation  of  a  sale  already 
made  during  a  period  of  six  months;  after  which,  the 
equitable  estate  acquired  by  the  purchaser  becomes  ab- 
solute and  indefeasible,  and  tlie  mere  dry,  naked,  legal 
title  remains  in  the  judgment  debtor,  with  autliority  in 
the  sheriff  to  divest  it,  by  executing  a  deed  to  the  pur- 
chaser."^ Because,  by  a  sale  under  execution,  the 
purchaser  acquires  even  before  the  expiration  of  the 
time  f(jr  redemption,  an  inchoate,  inceptive  title  to 
the  lands  sold,  and  because  the  sheriff's  deed,  when 
made,  takes  effect  by  relation  as  of  the  day  of  the  sale, 
the  purchaser's  title  has,  in  California,  New  York,  and 

I  Page  V.  Rogers,  31  Cal.  301. 


§  IM  TvEAT.  rROrCRTY  SUBJECT  TO  EXECUTION.  5G0 

Pcnnsivlvania,  hoow  lifld  to  ho  subject  to  (>X(T,ution.^ 
So  it  is  saiil  that  the  estate  of  a  tenant  by  elegit  is  sub- 
jwt  to  execution  in  l^.n^•lancl;-  But  in  Maine,  Ohio, 
and  New  Jersey,  one  ^vho  derives  title  und(>r  an  execu- 
tion has  no  interest  subject  to  levy  until  the  time  for 
redi-niption  has  expired,  althou'^li,  in  tlie  tirst-natncd 
state,  he  has  by  law  a  perfect  legal  title,  and  not  a 
mere  equity,  —  this  legal  title  being  defeasible  on  pay- 
ment of  the  snni  required  to  make  redemption.' 

§  194.  The  Interest  Held  under  a  Contract  to  pur- 
chase, with  an  agreement  for  a  conveyance  when  the 
terms  of  the  sale  have  been  complied  with,  is,  of  course, 
a  mere  equity,  and  upon  common-law  principles  is  not 
suVnect  to  execution.  Prior  to  the  statute  of  21)  Charles 
II.  it  would  have  been  immaterial  to  inquire  whe^ther 
the  vendee  had  fully  complied  with  the  terms  of  his 
aoreement,  and  become  entitled  to  a  conveyance,  or  not; 
for  as  lonor  as  the  legal  title  remained  in  the  vendor, 
there  was  no  interest  in  the  vendee  subject  to  execu- 
tion. Under  the  construction  given  to  this  and  to 
isimilar  statutes,  the  vendee  who  had  made  full  pay- 
ment, and  was  entitled  to  an  immediate  conveyance, 
was  regarded  as  a  ceslui  que  trust,  for  whom  and  to 
whose  use  the  vendor  was  seized.  Hence  the  in- 
terest of  such  vendee  was  held  to  be  liable  to  levy  and 
sale  at  law.*      The  same   rule    has   been   maintained 

>  Page  V.  Rogers,  31  Cal.  301;  Wriglifc  v.  Douglas,  2  N.  Y.  .37.'];  Slater'.s  Ap- 
peal, 29  Ra.  St.  109;  Morrison  v.  Wurtz,  7  Watts,  437;  Whiting  v.  Bu.lcr,  29 
Mich.  129. 

»  Watson  oil  Sheriffs,  208. 

»  Den  r.  Steelmau,  5  llal.st.  193;  Gonell  v.  Kolsey,  40  Ohio  St.  117;  Kidder 
r.  Orcutt,  40  Me.  5S9. 

♦  Morgan  r.  Rouse,  53  Mo.  219;  Thompson  r.  Wheatlcy,  5  Smedea  &  M. 
499;  Moody  ?•.  Farr,  0  Smedea  &  M.  100;  Frost  r.  Reyuolils,  4  Ired.  Eq.  491; 
Pitta  V.  Ballard,  3  Kelly,  5;  43  Aui.  Dec.  403;  Neef  v.  Sccly,  49  Mo.  209; 
Phillips  V.  Davij,  09  N.  C.  117. 


661  REAL  PROPERTY  SUBJECT  TO  EXECUTION.  §194 

where  the  purchase-money,  though  tendered  by  the 
vendee,  had  been  refused  by  the  vendor.^  But  in  some 
of  the  states  the  vendee's  interest  has  been  held  to  be 
exempt  from  execution  until  the  conveyance  was  made 
to  him.  This  was  so  for  a  long  time  in  Alabama,"  and 
until  the  adoption  of  the  code  now  in  force  in  that 
state.  In  Indiana,  the  interest  of  the  vendee  is  not 
subject  to  direct  levy  and  sale  until,  by  conveyance,  he 
has  become  vested  w^ith  le^al  title  :^  but  it  mav  be 
reached  by  certain  statutory  proceedings  in  aid  of  the 
execution.^  In  cases  where  a  contract  of  sale  has  been 
made,  and  only  a  portion  of  the  purchase-money  has 
been  paid,  the  vendee  has  an  interest  which  will  be 
recognized  and  amply  protected  in  equity.  He  is  not, 
however,  such  a  cestui  que  trust  as  is  referred  to  in  the 
statute  of  29  Charles  II.,  nor  in  similar  statutes.  He 
has  no  right  to  call  for  an  innnediate  conveyance.  He 
is  not  entitled  to  the  legal  estate;  nor  is  it  certain  that 
he  will  ever  be  so  entitled.  The  vendor  has  still  a 
beneficial  interest  in  the  les^al  estate.  It  is  true  that 
the  vendee's  estate  or  interest  may  be  of  great  value, 
and  that  it  ought,  as  a  matter  of  public  policy  and  of 
connnon  honesty,  to  be  availaljJe  as  assets  for  the  bene- 
fit of  his  creditors.  But  it  is  clear  that  the  case  is  not 
one  of  a  simple,  unmixed  trust,  and  therefore  that  the 
vendee's  interest  cannot  be  taken  in  execution,  b}"  vir- 
tue of  the  common  law,  nor  of  the  statutes  heretofore 
referred   to.^      The    interest  of  the  vendee    may  be 

»  Anthony  v.  Rogers,  17  Mo.  .^94. 

»  Hogan  V.  Smith,  IG  Ala.  COO;  Collins  f.  Robinson,  3.T  Ala.  01;  Fawcett  v. 
Kinney,  'M  Ala.  2(H. 

»  Modiaett  r.  Joliii.son,  2  I'.lackf.  4:il;  (Icutry  v.  Allison,  20  Iii<l.  481. 

♦  Figg  J'.  Snook,  11  Iml.  202. 

'  Itogert  ?•.  I'erry,  17  .lolnis.  'S'i\;  8  Am.  Dec.  411;  Goodwin  v.  AniliT.son,  5 
SmcdeH  &  M.  7.'K);  Ledhettor  v.  Anderson,  I'hill.  Efj.  323;  Harrow  r.  Jaine\  7 
Stnedc8&  M.  Ill;  Bruason  v.  Gr:iut,  48  Ga.  3U4;  Ellis  v.  Ward,  7  Sinedca  Sc 
Vol.  I.-aa 


^ 


§  I'M  KKAL   PKOrKKTV   SITUECT  TO  EXECUTION.  6;l'2 

transforriHi  vi>limtarily.  IUmu-o  it  Ikis  Ixcii  luKl  tliat 
a  sale  tlioivot' umliM-  (execution,  iiKule  at  liis  n^qucst,  is 
varul.'  In  .sovi'ial  of  tlir  stati-s  the  interest  of  a  ven- 
dee, after  jvut  paviiient  has  been  made,  is  by  statute 
subjeet  to  exei-ution.  The  purchasi>r  at  the  sherilFs 
sale  beeonus  entitled  to  all  the  benefits  of  the  eontraet 
of  sale  on  eoniplyini;"  with  all  its  conditions.^  We  have 
already  shown  that  the  n)ere  possession  of  lands  is 
prima  facie  evidence  of  a  legal  estate,  and  is  subject  to 
execution.^  It  may  be  shown,  however,  that  such 
possession,  instead  of  being  held  by  virtue  of  some 
lejral  title,  is  held  bv  the  sufferance  and  at  the  will  of 
the  owner,  or  by  virtue  of  a  contract  of  purchase,  or  of 
some  purelv  equitable  title.  When  such  a  showing  is 
made,  the  presumption  arising  from  the  defendant's 
possession  is  rel)utted;  and  we  think,  as  a  necessary 
consequence  of  such  rebuttal,  the  interest  of  the  defend- 
ant ought  to  be  declared  not  subject  to  execution. 
Such  has  uniforndy  been  the  case  when  the  defendant's 
possession  has  been  shown  to  be  permissive  or  by  mere 
tenancy  at  will.  But  some  contrariety  of  opinion  has 
been  expressed  in  cases  where  the  possession  was  held 
in  connection  with  and  by  virtue  of  a  contract  to  pur- 
chase, or  of  some  other  equitable  title.    The  majority  of 

M.  G51;  Frost  v.  Reynolds,  4  Ircd.  Eq.  494;  Delaflelil  r.  Anderson,  7  Smedcs 
&  M.  C30;  Badlamr.  Cox.  11  Ired.  450;  Moore  f.  Simpson,  3  Met.  (Ky.)  349; 
Hinsdale  r.  'Diornton,  75  N.  C.  3S1.  In  Oliio  an  interest  held  under  a  bond 
for  title,  without  possession,  is  not  suhject  to  execution.  Ilaynesr.  Baker,  5 
Ohio  St.  253. 

•  Moore  r.  Simpson,  3  Met.  (Ky.)  3^t9. 

-  Nickle*  V.  Haskins,  15  Ala.  019;  ',0  Am.  Dec.  154;  Fish  r.  Fowlie,  58  Cal. 
373;  Estcs  r.  Ivey,  53  Ga.  5-J;  Young  v.  Mitchell,  33  Ark.  222;  R<^)scnfeld  v. 
Chada,  12  Neh.  25;  Brant  v.  Rol)ertson,  10  Mo.  129;  Luinley  v.  Robinson,  20 
Mo.  3GI;  Stevens  v.  Legrow,  19  .Me.  95;  Jameson  r.  Head,  14  Mo.  .34;  Woods 
r.  Scott,  14  Vt.  518;  Houston  v.  Jordan,  35  Mo.  520;  Rusaell's  Appeal,  15  Pa. 
St.  319;  Vierheller'a  Appeal,  24  Pa.  St.  105;  02  Am.  Dec.  305. 

»  See  §  175. 


563  KEAL  PROPERTY   SUBJECT  TO  EXECUTION.  §194 

the  cases  have,  we  beheve,  affirmed  that  the  interest  of 
the  vendee,  before  full  paj-ment,  is  not  subject  to  execu- 
tion, though  he  is  found  in  possession  of  the  property.^ 
In  New  York  and  in  Ohio  a  different  result  was  an- 
nounced;- but  in  neither  of  these  states  did  the  courts 
venture  to  express  an  opinion  whether,  by  the  execution 
sale,  the  purchaser  acquired  anything  beyond  the  mere 
possession.  Since  the  early  decisions  in  New  York 
were  pronounced,  a  statute  has  been  enacted,  under 
which  means  arc  provided  for  reaching  the  interests  of 
vendees  in  possession  under  contracts  of  purchase ;  but 
the  sale  of  such  interests,  under  an  ordinary  levy  and 
sale,  is  forbidden  and  made  void.^ 

1  Ellis  V.  Ward,  7  Smedes  &  M.  651;  Frost  v.  Reynolda,  4  Ired.  Eq.  494; 
Badlam  r.  Cox,  1 1  Ired.  456. 

*  Jackson  v.  Scott,  18  Johns.  94;  Jackson  v.  Parker,  9  Cow.  73. 

3  Boughton  V.  Bank  of  Orleans,  2  Barb.  Ch.  458;  Griffin  v.  Spencer,  6  Hill, 
525;  Sago  v.  Cartwright,  9  N.  Y.  49. 


S  r.»:«  TllK  LIKN   Ob'  KXKCUTIONS.  804 


ClLVrTOU  XITI. 

THE   l.ll.N  OK   EXECUTIONS. 

§  10.').  CioniTal  nriturc  and  tiTcct  of  tin-  lii-ii. 

§  1%.  I'iflVrenci'.s  iK-tweeii  I'xcoutioii  ami  otlicr  liens. 

§  197.  rrojKTty  8ul>ject  to  execution  liuns. 

g  ins.  Territorial  extent  of  tin;  lien. 

§  IW.  At  common  law,  eomjnenfe.s  at  the  teste  of  tlie  writ. 

§  200.  By  statute,  eommenoca  witb  tiie  «lelivery  of  the  writ  for  execution. 

§  201.  By  statute,  eouimenoes  with  the  levy  of  the  writ. 

§  202.  Duration  of  execution  liens. 

§  203.  LicU3  under  writa  of  ecjual  date  or  teste. 

§  '204.  Lieus  under  writs  from  tiie  courts  of  the  United  States. 

§  '207).  Judgment  liiii  not  continued  by  execution. 

§  200.  Lien  is  dormant  while  the  writ  is  not  heing  executed  in  good  faith. 

§  207.  Lien  not  to  l»o  lost  during  tlio  life  of  the  writ,  except  by  some  act  or 
fault  of  the  plaintilf. 

§  195.  General  Nature  and  Effect  of  the  Lien.  — 
In  all  that  lius  heretofore  been  said  regarding  the  prop- 
erty subject  to  execution,  wc  have  assumed  that  the 
property  spoken  of  at  the  time  the  officer  sought  to 
make  his  levy  belonged  to  the  defendant.  There  are 
many  instances,  however,  in  wjiich  property  may  law- 
fully be  taken  in  execution  after  the  defendant's  interest 
therein  has  ceased.  These  instances  arise  in  all  cases 
where  the  property  is  subject  to  some  lien  by  which  it 
is  bound  for  the  express  purpose  that  it  may  be  made 
available  to  the  satisfaction  of  the  execution.  Hence 
it  becomes  the  duty  of  an  officer,  on  receipt  of  an  exe- 
cution, to  inquire,  not  merely  in  reference  to  the  prop- 
erty at  present  owned  by  the  defendant,  but  also  in 
regard  to  all  other  property  of  the  defendant  liable  to 
the  execution.  Thus  the  judgment  may  be  a  lien  on 
real  estate  belonging  to  the  defendant  at  its  rendition. 


665  THE  LIEN  OF  EXECUTIONS.  §195 

and  since  alienated  by  him;  or  property,  real  or  per- 
sonal, may  have  been  attached  at  the  institution  of  the 
suit,  and  may  therefore  be  liable  to  be  taken  in  execu- 
tion, though  it  has  since  been  sold  by  the  defendant. 
The  subjects  of  attachments  and  of  judgment  liens  do 
not  come  within  the  scope  of  this  work.  Our  readers 
must  look  elsewhere  for  information  concerning  these 
two  important  themes.^  In  many  of  the  states  a  lien 
arises  from  the  execution  itself  This  lien,  being  within 
the  scope  of  our  work,  must  be  treated  here.  The  lien 
of  an  execution,  like  other  liens,  does  not  of  itself  trans- 
fer title.  It  does  not  change  the  right  of  property, 
and  vest  it  at  once  in  the  plaintiff  in  execution  nor  in 
the  officer  char<ifed  with  the  execution  of  the  writ.  It 
confers,  however,  the  right  to  levy  on  the  property  to 
the  exclusion  of  all  transfers  and  liens  made  by  the 
defendant  subsequent  to  commencement  of  the  execu- 
tion lien.  When  the  levy  and  sale  are  made,  the  title 
relates  back  to  the  inception  of  the  lien,  and  thus  takes 
precedence  over  all  transfers  and  encumbrances  made 
subsequently  to  such  inception.  It  has  been  held  that 
an  execution  lien  does  not,  prior  to  levy,  create  a  vested 
right;  and  therefore  that  property  subject  to  such  lien 
may  by  act  of  the  legislature  be  exempted  from  exe- 
cution.^ It  is  certain  that  the  owner  of  property 
bound  by  an  execution  lien  may  convey  or  transfer  the 
legal  title,  subject,  however,  to  its  being  subsequently 
divestod  by  a  seizure  and  sale  while  in  the  hands  of 
his  vendee.''     While  the  sheriff  may  seize  property  in 

*  See  Drake  on  Attachment;  Freeman  on  Judgments,  c.  14. 

»  Norton  r.  McCall,  (>o  N.  C.  l.')0;  LacM  r.  A.latna,  G()  N.  C.  104. 

»  Simillcomli  r.  Cross,  1  L<1.  lUym.  '2')'2;  llotclikisa  r,  MeVickur,  12  Johns. 
400;  FoUom  v.  Che«ley,  2  N.  H.  4.T2;  Churoliill  r.  Warren,  2  N.  II.  298;  IJatos 
r.  MiKjru,  2  liiil.  Gil;  Jones  v.  Ju.lkinH,  4  I>ov.  &  B.  454;  I'ayno  i\  Drewo,  4 
Eaat,  623;  Samuel  v.  Duke,  3  Mcca.  St,  W.  022;  0  Dowl.  P.  C.  630;  HI.  &  II.  127. 


§  I'.V.  THE  LIEN  OF  EXECUTIONS.  .  6G« 

the  liaiuls  cif  surli  voikK;c,  and  sell  it  lor  the  purpose 
of  satisfyin<^  the  lien,  he  has  not,  prior  to  seizure,  any 
special  property  in  the  jj^ooils,  and  therefore  camiot 
sustain  an  action  of  trover  ajjjainst  one  who  converts 
thenu*  Whether  the  Hen  of  an  execution  ho  n^ijjarded 
as  taking  ellect  from  its  teste  or  from  its  dehvery  to 
the  shcritf,  the  result  of  the  lien,  alter  it  is  conceded 
to  have  become  operative,  is  the  same.  It  authorizes 
the  otlicer  to  seize  and  sell  the  goods  wherever  they 
may  be  found,  although  since  its  inception  they  may 
have  been  sold  to  a  purchaser  without  notice,'  or  tlicir 
owner  may  have  died.^  A  wagon  was  by  the  owner 
placed  in  the  possession  of  a  mechanic  for  the  purpose 
of  making  repairs  thereon ;  and  having  made  such  re- 
pairs, he  was,  under  the  statutes  of  the  state,  entitled 
to  a  lien  upon  the  property  therefor.  It  was  shown, 
however,  that  prior  to  the  placing  of  the  wagon  in 
possession  of  the  mechanic,  a  writ  o^ fieri  facias  against 
the  owner  had  been  delivered  to  a  constable  for  ser- 
vice, of  which  fact  the  mechanic  was  ignorant  until 
after  he  made  the  repairs.  It  was  held  that  the  me- 
chanics' lien  could  not  displace  that  of  the  execution, 
and  that  the  officer  was  entitled  to  recover  possession 
of  the  wagon.*     So  where  mortgages  existed  against 

'  Hathaway  v.  Howell,  54  N.  Y.  97;  Hotchkisa  r.  McVickar,  12  Johns.  400; 
Paysinger  v.  Shumpard,  1  Bail.  237. 

»  MarshaU  v.  Cunningham,  13  111.  20;  LintUcy  v.  Kclley,  42  Ind.  21)4;  Mil- 
lion V.  Riley,  1  Dana,  330;  25  Am.  Dec.  140;  NcwcU  v.  Sibley,  1  South.  3S1; 
Damca  v.  Hayes,  1  Swun,  .304;  Evans  v.  Barnes,  2  Swan,  292;  Duncan  v.  Mc- 
Cuuiber,  10  Watts,  212. 

»  Becker  v.  Becker,  47  Barb.  497;  Dodge  v.  Mack,  22  111.  93;  Den  v.  Hill- 
man,  2  Halst.  180;  I'arkei  v.  Mosse,  Cro.  Eliz.  ISl;  Waghorno  r.  Langmead, 
1  Bos.  &,  P.  571;  Preston  r.  Surgoine,  Peck,  72;  Black  r.  Planters'  Bank,  4 
Humph.  307;  Harvey  r.  Berry,  1  Ba.xt.  252;  Trevillian  r.  Guerrant,  31  Gratt. 
G25.  In  Kentucky,  though  no  Kale  can  bo  made  after  defeuil.iut's  death,  tho 
lien  continues,  and  may  bo  enforced  in  equity.  Burgo  v.  Brown,  5  Bush,  535; 
90  Am.  Dec.  3G9. 

*  McCrisaken  r.  Oowciler,  70  liid.  131. 


567  THE  LIEN  OF  EXECUTIONS.  §  19G 

a  railroad,  under  wliich  proceedings  were  taken  result- 
ing in  the  appointment  of  a  receiver,  but  it  appeared 
that  prior  to  such  proceedings  sundry  creditors  had 
placed  execution  in  the  hands  of  proper  officers,  the 
court  determined  that  these  execution  creditors  were 
entitled  to  funds  arising  from  the  income  of  the  road 
in  preference  to  the  receiver.^  In  the  absence  of  a 
statutory  provision  giving  it  some  greater  effect,  an 
execution  lien,  like  that  of  a  judgment,  attaches  to 
the  real  rather  than  the  apparent  interest  of  the  de- 
fendant. If  the  title  held  by  him  is  subject  to  equities 
of  third  persons,  the  execution  lien  is  also  subordinate 
to  such  equities.-  "The  fountain  cannot  rise  higher 
than  its  source."  In  all  attempts  to  acquire  rights 
under  tjje  execution,  the  title  of  the  defendant  must 
be  regarded  as  the  source  beyond  which  it  will  be  im- 
possible to  proceed.  If  his  title  is  impaired  by  equities 
or  liens  which  are  susceptible  of  assertion  against  him, 
they  will  be  equally  susceptible  of  assertion  against  the 
execution  lien;  and  the  lien  may  be  destroyed,  or  more 
correctly  speaking,  may  be  proved  never  to  have  ex- 
isted, by  evidence  of  some  pre-existing  conveyance,  of 
which  the  judgment  creditor  had  no  actual  or  con- 
structive notice  when  his  lien  was  supposed  to  have 
attached. 

§  196.  Differences  between  Execution  and  Other 
Liens.  —  There  are  some  very  important  differences 
between  the  operation  of  a  lien  by  execution  and  that 
of  a  lien  by  judgment  or  mortgage.  A  judgment  or 
mortgage  lien  cannot  be  displaced  by  a  sale  made 
under   any  junior    lien.     The    purchaser  at    the    sale 

»  Oillxsrt  V.  Wa«hington  City  V.  M.  &.  G,  S.  11.  II.,  G3  Gratt.  645. 
•  McAdow  V.  Block,  4  Mont.  475.  \ 


§  1%  THE  LIEN  OF  EXECUTIONS.  5G8 

under  the  junior  lion  acquires  a  title  which  may  be 
divested  by  a    subsequent   sale  under  an   elder   lien. 
With  sales  made  under  execution,  the  rule  is  different. 
If  a  sheriff  has  two  or  more  writs  in  his  hands,  it  is 
his  duty  to  apply  the  proceeds  to  the  writ  having  the 
elder  lien.     Ho  may,  however,  levy  and  sell  under  the 
junior  writ.     If  he  does  so,  the  purchaser  acquires  title 
to  the  property  sold,  free  from  the  lien  of  all  the  other 
writs.^     In   such  an  event,  the  plaintiff  under  whose 
junior  writ  the  levy  and  sale  were  made  is  not  entitled 
to  the  proceeds  of  the  sale.     On  the  contrary,  it  is  the 
duty  of  the    sheriff'  to   apply  these   proceeds  to   the 
several  writs  that  may  be  in  his  hands,  according  to 
their  priority  as  liens.^     A  sale,   when  made   by  the 
officer,  is  not    for  the  benefit  of  the  particular  writ 
under  which  it  is  made,  but  for  the  benefit  of  all  writs 
in  his  hands,  according  to  their  respective  priorities. 
The   purchaser  at  the  sale  need  not  concern  himself 
about  the  priorities  of  the  writs  nor  the  distribution  of 
the  proceeds.     The  officer,  on  the  other  hand,  nmst  be 
attentive  to  these  matters.     For  though  he  may  have 
sold  under  a  junior  writ,  if  he  pays  the  money  to  the 
plaintiff  therein,  he  may  afterward  be  compelled  to  pay 
.  it  on  the  writ  properly  entitled  thereto.^     A  judgment 

1  Jones  V.  Judkins,  4  Dev.  &  B.  454;  34  Am.  Dec.  392;  Lambert  v.  Tauld- 
ing,  IS  Johns.  311;  Rogers  v.  Dickey,  1  Oilm.  636;  41  Am.  Dec.  204;  Marsh  v. 
Lawrence,  4  Cow.  4G1;  Rowe  v.  Richardson,  5  Barb.  385;  Isler  v.  Moore,  67 
N.  C.  74;  Woo.lley?'.  Cilliam,  67  N.  C.  237;  Samuel  v.  Duke,  3  Mees.  &  W. 
622;  6  Dowl.  1*.  C.  536;  1  H.  &  H.  127.  This  rule  is  in  Alabama  limited  to 
sales  of  personal  property.     Lancaster  v.  Jordan,  78  Ala.  197. 

■■*  Hanauer  v.  Casey,  26  Ark.  352. 

'■Jones  V.  Judkins,  4  Dev.  &  B.  454;  Green  v.  Johnson,  2  Hawks,  309; 
Jones  V.  Atherton,  7  Taunt.  56;  Drewe  v.  Laimson,  11  Ad.  &  E.  537;  Sawlo  v. 
Payuter,  1  Dowl.  &  R.  307;  Furman  v.  Christie,  3  Rich.  1;  Rogers  v.  Dickey, 
1  Gilm.  636;  Kirk  v.  Vonberg,  34  III.  440;  Huger  v.  Dawson,  3  Rich.  328; 
Peck  V.  Tiffany,  2  N.  Y.  451;  Marshall  v.  McLean,  3  G.  Greene,  363;  Millions. 


569  THE  LIEN  OF  EXECUTIONS.  §197 

lien  is  paramount  to  the  liens  of  all  younger  judgments, 
whether  entered  in  the  same  or  in  different  courts. 
But  an  execution  lien  does  not  necessarily  take  prece- 
dence over  tlie  liens  of  junior  executions.  There  may 
be  several  writs  in  force  against  the  same  defendant  at 
the  same  time.  Some  of  these  may  be  in  the  hands  of 
a  United  States  marshal,  others  in  the  hands  of  the 
sheriff  of  the  county,  and  others  in  the  hands  of  a  con- 
stable. Now,  if  these  several  writs  were  to  enforce 
ludo-ments  which  were  liens  on  real  estate,  the  elder 
judgment  lien  would  prove  paramount,  irrespective  ot 
the  teste,  delivery,  or  levy  of  the  respective  writs. 
But  if  there  are  no  liens,  except  such  as  arise  from  the 
writs,  the  rule  is  different.  The  officer  who  succeeds 
in  making  the  first  levy  thereby  obtains  priority  for 
his  writ,  and  secures  it  the  right  to  be  first  paid  out 
of  the  proceeds  of  the  sale.^ 

§  197.  In  Determining  What  Property  is  Subject 
to  Execution  Liens,  we  have  only  to  consider  the  pur- 
pose in  aid  of  which  such  liens  have  been  created  by 
law.  This  purpose  was  to  prevent  the  defendant  from 
alienating  such  property  as  the  plaintiff  was  entitled  to 
take  in  satisfaction  of  his  writ.  Therefore,  as  a  gen- 
eral rule,  all  property  subject  to  execution  is  subject  t(t 
an  execution  lien.     On  the  other  hand,  it  must  be  true 

Commonwealth,  1  B.  Mon.  31 1 ;  Russell  v.  Gibbs,  5  Cow.  390;  Rowe  v.  Richard- 
son, 5  Barb.  385;  Kennon  v.  Ficklin,  G  B.  Mon.  415;  Smallcomb  v.  Cross,  1 
Ld.  Raym.  251.     Contra,  Smallcorn  v.  Louil,  Comb.  428. 

1  Moore  v.  Fitz,  15In(l.  43;  McCall  v.  Trevor,  4  Blackf.  496;  Jones?'.  Da\is, 
2  Ala.  730;  Ray  v.  Harcf)urt,  19  VVen.l.  495;  Irwin  v.  Sloan,  2  Dev.  349;  Ar- 
berry  v.  Noland,  2  J.  J.  Marsh.  421;  Fiehh'.  Millburn,  0  Mo.  492;  McClelland 
V.  Slinghuff,  7  Watts  &  S.  134;  Dubois  v.  Harcourt,  20  Wend.  41;  Wylie  v. 
Hyle,  13  Johns.  241);  Kring  v.  Green,  10  Mo.  195;  Peck  t'.  Robinson,  3  Head, 
438;  Miller?;.  Commonwealth,  1  B.  Mon.  311;  Pritchard  v.  Toole,  53  Mo.  356; 
Lash  V.  Gibson,  1  Murph.  206;  Tilfordu.  Burnham,  7  Dana,  109. 


§  107  THE  LIEN  OF  EXECUTIONS.  670 

that  no  property  not  subject  to  execution  can  bo  sub- 
ject to  execution  lion,  for  it  would  be  idle  to  declare 
the  existence  of  a  lien,  and  at  the  same  time  maintain 
that  no  proceedinq;s  can  be  had  for  its  enforcement. 
Exempt  property  may  therefore  be  sold  or  exchang'cd 
while  writs  aij^ainst  the  owner  are  in  the  officer's  hands, 
without  imperiling  the  title  of  the  vendee.-^  If  the 
owner  should,  however,  decline  to  claim  his  exemption 
wliere  the  law  makes  it  his  duty  so  to  do,  we  presume 
that  this  waiver  of  his  rights  would  impress  the  prop- 
erty with  the  legal  characteristics  of  property  subject 
to  execution,  at  least  so  far  as  to  entitle  the  holders  of 
several  writs  to  share  in  the  proceeds  according  to  the 
respective  priorities  of  such  writs. 

In  a  state  where  growing  crops  are  liable  to  be  seized 
and  sold,  they  are  bound  by  the  execution  lien;'^  while 
in  states  where  they  cannot  be  levied  upon  till  gath- 
ered, they  are  not  before  gathering  subject  to  such 
lien.^  Money  passes  rapidly  from  hand  to  hand,  and 
is  incapable  of  identification.  It  must  necessarily  on 
this  account,  and  also  as  a  matter  of  public  policy, 
be  exempted  from  the  operation  of  execution  liens.* 
Thouo^h  we  have  met  with  no  authorities  on  the  sub- 
ject,  we  think  that  all  property  which  on  principles 
of  public  policy  and  the  necessities  of  commerce  is  ex- 
empted from  the  law  of  lis  pendens^  is  also  exempt  from 
the  lien  of  executions.  In  Virginia  and  West  Virginia 
all  personal  property,  including  choses  in  action,  owned 
by  the  debtor  from   the  delivery  of  the  writ  to  the 

*  Gotman  v.  Smith,  17  Ind.  152;  Paxton  v.  Freeman,  G  J.  J.  Marsh.  234; 
22  Am.  Doc.  74. 

2  Lin.lley  v.  Kelley,  42  Ind.  294. 

'  Evans  v.  Lamar,  21  Ala.  333;  Adams  v.  Tanner,  5  Ala.  740. 

*  Doyle  V.  Sleeper,  1  Dana,  531. 

*  For  property  not  bound  by  lui  jiendena,  see  Freeman  on  Judgment,  sec.  194. 


671  THE  LIEN  OF  EXECUTTOlSrS.  §  198 

officer  to  the  return  day  thereof,  is  by  statute  subject 
to  execution  liens.^  Property  manufactured  for  sale,^ 
and  the  interest  of  a  partner  in  the  assets  of  a  firm,^  are 
subject  to  execution  hens;  but  the  execution  against 
the  partner  is  subordinate  as  a  hen  to  subsequent  exe- 
cutions against  the  partnership.*  The  hen  attaches  to 
property  acquired  by  the  defendant  at  any  time  while 
the  writ  is  in  force.®  Hence  if  a  horse  of  the  defend- 
ant is  exchanged  for  another  while  the  writ  is  in  force, 
both  become  subject  to  the  lien,  and  may  be  taken  and 
sold.® 

§  198.    The  Territorial  Extent  of  Execution  Liens 

varies  in  different  states.  In  South  Carolina  it  is  co- 
extensive with  the  boundaries  of  the  state."  The 
object  of  the  lien  is  to  bind  the  property  which  can 
be  seized  under  the  writ.  Hence  the  usual  rule  is, 
that  property  situate  witliin  the  territory  in  which  the 
writ  may  be  executed  is  bound,  while  property  outside 
of  that  territory  is  not  bound.^  Writs  are  commonly 
to  be  executed  in  the  county  where  they  are  issued, 
and  their  lien  is  ordinarily  confined  to  the  same 
county.^  But  where  a  writ  may  be  sent  to  another 
county  for  execution,  no  doubt  it  would  create  a  lien 

• 

1  Puryear  v.  Taylor,  12  Gratt.  401;  Huling  v.  Cahill,  9  W.  Va.  531. 
^  Sawyer  v.  Ware,  36  Ala.  G75. 
3  Wiles  V.  Ma.ldox,  26  Mo.  77. 

*  Crane  ?•.  Freucli,  1  Wend.  311;  Dunham  v.  Murdock,  2  Wend.  553;  Fen- 
ton  V.  Folger,  21  Weud.  676. 

*  Lea  V.  Hopkins,  7  Pa.  St.  492;  Shafner  v.  Gilmore,  3  Watts  &  S.  438; 
Ruttan  V.  Levi.scoiite,  16  U.  C.  Q.  B.  49j. 

*  Grooines  v.  Dixon,  5  Strob.  149;  Orchard  v.  Williamson,  6  J.  J.  Marsh. 
661;  22  Am.  Dec.  102. 

'  Woodwar.l  r.  Hill,  3  McCord,  241. 

»  Hardy  v.  Jasper,  3  Dev.  158;  Gott  v.  Williams,  29  Mo.  461;  Roth  v.  Wells, 
29  N.  Y.  471. 

»  Claggett  V.  Foreu,  1  Dana,  428;  Pond  v.  Griffin,  1  Ala.  678. 


§  l<.)9  THE  LIEN  OF  EXECUTIONS.  572 

on  the  debtor's  piopcM-ty  tberc^in  from  the  tune  it  was 
cleHverod  to  the  ollierr  for  st>rviee.  In  some  of  the 
states  the  sueeessful  suitor  in  the  appellate  eourt  may 
liave  exeeution  issued  upon  its  judgment  to  any  county 
in  the  state.  Very  serious  ineonveiiience  and  apparent 
injustice  may  arise  from  the  enforcement  of  a  rule  main- 
taininer  the  lien  of  an  execution  so  issued  as  cfifective 
of  any  date  prior  to  its  delivery  to  an  officer  of  the 
count}'  l\)r  exeeution.  For  while  it  may  be  practicable 
for  an  intending  purchaser  to  ascertain  in  the  office  of  the 
sheriil'of  his  county  whether  there  are  any  writs  there 
against  the  vendor,  such  inquiry  cannot  reasonably  ex- 
tend to  the  capital  in  a  remote  part  of  the  state.  These 
hardships,  though  urged  in  the  supreme  court  of  North 
Carolina,  were  not  so  potent  as  to  preclude  it  from 
maintaining:  the  lien  of  its  execution  from  the  teste  of 
the  writ.^  If  property,  when  bound  by  an  execution 
lien,  is  removed  to  another  county  or  state,  and  is 
afterward  returned,  it  is  still  subject  to  the  licn;^  or 
if  the  removal  be  to  another  county,  the  lien  may  be 
made  available  by  taking  out  an  execution  to  that 
county.^ 

§  199.  Lien  at  Common  Law  Dated  from  the  Teste 
t)f  the  Writ.  —  At  common  law  a  fieri  facias  was  a  lien 
upon  the  personal  property  of  the  defendant  from  its 
teste.*  This  teste  might  be  the  first  day  of  the  term, 
and  hence  long  anterior  to  the  issue  of  the  writ  and  to 

1  Rhyne  v.  McKee.  73  N.  C.  259. 

»  Hood  V.  Winsatt,  1  B.  Mon.  211;  McMahan  v.  Green,  12  Ala.  71;  Claggett 
r.  Force,  1  Dana,  428;  Nuwcombe  v.  Leavitt,  22  Ala.  G31;  Lambert  v.  Pauld- 
ing, 18  Johns.  311. 

»  Forrnan  r.  Proctor,  9  B.  Mon.  125;  Hill  v.  Slaughter,  7  Ala.  632. 

*  Palmer  v.  Clarke,  2  Dcv.  .354;  21  Am.  Dec.  .340;  Hanson  v.  Barnes's  Lessee, 
3  Gill  &  J.  359:  22  Am.  Dec.  322;  Jonea  v.  Jones,  1  Bland,  443;  18  Am.  Dec. 
327. 


573 


THE  LIEN  OP  EXECUTIONS.  §199 


the  actual  rendition  of  the  judgment.  Alienations  and 
encumbrances,  made  in  perfect  good  faith  were  there- 
fore liable  to  be  defeated  by  executions  actually  issued 
long  subsequent  thereto.'  The  hardships  visited  upon 
purdiasers  and  encumbrancers  were  to  some  extent 
obviated  by  statute  29  Charles.  II.,  c.  3.  This  statute 
was  never  adopted  in  some  parts  of  the  United  States. 
The  common-law  rule,  under  which  the  goods  of  the 
defendant  are  bound  from  the  teste  of  execution  against 
him,  still  prevails  in  North  Carolina'  and  Tennessee.^ 
In  the  last-named  state,  it  seems  to  be  established, 
after  nmch  doubt  and  discussion,  that  the  rule  will  not 
be  applied  against  bona  fide  purchasers  without  notice 
prior  to  the  actual  rendition  of  the  judgment.*  Execu- 
tions issued  out  of  justices'  courts  also  form  exceptions 
to  the  general  rule,  and  are  not  liens  till  levied.^  Trust 
estates  were  not  subject  to  execution  at  common  law. 
The  construction  of  the  statute  under  which  they  were 
in  England  made  liable  to  execution  is  such  that  they 
are  nol  bound  by  the  writ  until  actually  levied  upon.® 
The  assets  of  a  copartnership  are  first  liable  to  the 
partnership  debts.  Until  these  debts  are  satisfied, 
neither  the  individual  partners  nor  their  creditors  have 

1  Anonymous,  Cro.  Eliz.  174;  Baskerville  v.  Brocket,  Cro.  Jac.  451;  Bingham 
on  Judgments  and  Executions,  100;  Payne  v.  Drewe,  4  East,  538. 

•^  Green  v.  Johnson,  2  Hawks,  309;  11  Am.  Dec.  7G3;  State  v.  lerrell,  03 
N.  C.  GiO;  Gilkcy  v.  Dickerson,  3  Hawks,  293;  Stamps  v.  Irvine,  2  Hawks, 
232;  BcckenUte  ?•.  Arnohl,  3  Hawks,  290. 

3  Colfo  V  Wniy,  8  Ycrg.  404;  Peck  v.  Robinson,  3  Head,  438;  Johnson  v. 
Ball,  1  Yerg.  201;  24  Am.  Dec.  451;  Cox  v.  Hodge,  1  Swan,  .371;  Battle  v.  Ber- 
ing' 7  Yerg  5''9-  27  Am.  Dec.  520;  Union  Bank  v.  McClung,  U  Humph.  91; 
D^ley  V.  Perry,  9  Yerg.  442;  Andur.son  r.  Taylor,  1  Tenn.  Ch.  430.  With  re- 
spect to  lan.la  there  is  no  execution  lieu  in  this  state.  They  are  hound  only  by 
the  judgment  lien  or  by  a  levy  of  the  writ.     Anderson  v.  Taylor,  6  Lea,  382. 

*  Berry  v.  Clements,  9  Humph.  312. 

"  Parker  v.  Swan.  1  Humph.  80;  Farquhar  v.  Toncy,  5  Humph.  502. 

«  Moriscy  v.  Hill.  9  Ircd.  CO;  Hall  v.  Harris,  3  Ired.  Eq.  289;  WUhamsoa  v. 
Jamcd,  10  Ircd.  102. 


§'JlK)  THE  LIEN  OP  EXECUTIONS.  674 

any  rii^ht  to  parti('i[)ato  in  the  assets.  Hence  an  as- 
siixiinient  to  pay  partnership  debts  has  in  North  Caro- 
lina hccu  lu'ld  to  take  precedence  over  an  execution 
against  one  o['  tlie  partners,  tested  prior  to  the  assign- 
ment.* 

§  200.  Statutes  Making  the  Lieu  Commence  at 
the  Delivery  of  the  Writ.  —  To  alleviate  the  hard- 
ship and  injustice  of  the  common  law,  **it  is  enacted 
by  the  29  of  Car.  II.,  c.  3,  sec.  IG,  that  no  fieri  facias 
or  other  writ  shall  bind  the  property  or  goods,  but 
from  the  time  such  writ  shall  be  delivered  to  the  sheriff 
to  be  executed,  who,  on  his  receipt  of  it,  shall  indorse 
the  day  of  his  receipting  the  same;  that  is,  that  if, 
after  the  writ  is  so  delivered,  the  defendant  makes  an 
assignment  of  his  goods  (except  in  market  overt),  the 
sheriff  may  anywhere  take  them  in  execution."^  This 
statute  was  adopted  very  generally  on  this  side  of  the 
Atlantic;  and  while  it  is  steadily  giving  way  before 
statutory  provisions,  under  which  the  lien  of  execu- 
tions is  entirely  abolished,  it  is  still  substantially  the 
law  in   about  one   half  of  the  states.^     The  require- 

1  Watt  V.  Johnson,  4  Jones,  190;  Harris  v.  riiillips,  4  S.  W.  Rep.  196. 

*  Bingham  on  Judgments  and  Executions,  190;  Hutchinson  v.  Johnson,  1 
Term  Rep.  729. 

»  In  re  Paine,  17  Nat.  Bank  Reg.  37;  Whitehead  v.  Woodruff,  11  Bush,  209i 
Durbin  v.  Haines,  99  Ind.  403;  Perkins  v.  Brierfiold  I.  &  C.  Co.,  77  Ala.  403; 
Davis  V.  Oswalt,  18  Ark.  414;  Hananer  v.  Casey,  26  Ark.  352;  Lawrence  v.  Mc- 
Intyre,  83  111.  399;  McMahan  v.  Green,  12  Ala.  71;  Laytou  v.  Steel,  3  Harr. 
(Del.)  512;  Taylor  v.  Horsey,  5  Harr.  (Del.)  131;  People  v.  Bradley,  17  111. 
485;  Oarner  v.  Willis,  Breese,  370;  Leach  v.  Pine,  41  III.  05;  Kennon  v.  Fick- 
lin,  6  B.  Mon.  414;  Cones  v.  Wilson,  14  Ind.  465;  Vandibur  r.  Love,  10  Ind. 
54;  Tabb  v.  Harris,  4  Bibb,  20;  Million  v.  Riley,  1  Dana,  359;  25  Am.  Dec. 
149;  Duffy  v.  Tounsend,  9  Mart.  (La.)  585;  Arnott  I'.-Nicholls,  1  Har.  &  J. 
473;  Selby  v.  Magruder,  6  Har.  &  J.  454;  Giese  v.  Thomas,  7  Har.  &  J.  459; 
Furlong  V.  Edwards,  3  Md.  99;  Brown  v.  Burrus,  8  Mo.  20;  Gott  v.  Williams, 
29  Mo.  461.  But  tlie  rule  in  Missouri  is  now  different.  Wagner's  Stats.,  p.  607; 
Newell  V.  Sibley,  1  South.  381;  Beals  v.  Guernsey,  8  Johns.  446;  5  Am.  Dec. 


f 


575  THE  LIEN  OF  EXECUTIONS.  §200 

ment  of  the  statute  that  the  sheriff  shall  indorse  on 
the  writ  the  time  at  which  it  is  received  was  designed 
to  furnish  evidence  by  which  to  determine  precisely 
when  the  lien  attached.  If  the  sheriff  omits  the  per- 
formance of  this  portion  of  his  duty,  the  plaintiff's 
rights  are  so  far  prejudiced  that  he  may  be  compelled 
to  furnish  other  evidence  by  which  to  prove  the  time 
at  which  his  lien  commenced.  If  he  succeeds  in  mak- 
ing such  proof,  the  absence  of  the  indorsement  be- 
comes immaterial.^  Leaving  a  writ  at  the  sheriff's 
office,  or  at  lii^  usual  place  of  business,  is  equivalent  to 
delivering  it  to  him  personally.'-^  The  lien  commences 
at  once,  though  the  writ  is  received  out  of  office 
hours.^  In  New  York  and  Virginia,  subsequent  pur- 
cliascrs  and  encumbrancers,  in  good  faith  and  without 
notice,  are  protected  from  the  lien  of  executions  not 
levied.*  Ir  most  of  the  states  the  rule  that  the  writ 
first  delivered  for  execution  shall  become  a  lien  from 
that  date,  and  shall  be  entitled  to  satisfaction  over 
subsequent  writs  first  levied,  is  confined  to  writs 
in  the  hands  of  the  same  officer;    as  between  writs 

348;  Camp  v.  Chamberlain,  5  Dcnio,  198;  Hale  v.  Sweet,  40  N.  Y.  98;  Lam- 
bertr.  Paulding,  18  Johns.  311;  Beals  v.  Allen,  18  Johns.  3G3;  9  Am.  Dec. 
221;  Hodf,'e  v.  Adec,  2  Lans.  314;  Cresson  v.  Stout,  17  Johns.  116;  S  Am.  Dec. 
373;  Lewis  v.  Smith,  2  Serg.  &  R.  157;  Cowden  r.  Brady,  8  Scrg.  &  R.  50.*); 
Cllild.^^^  Dilwortli,  44  Pa.  St.  123;  Puryear  v.  Taylor,  12  Gratt.  401;  Lynch  v. 
Hanahan,  9  Rich.  180. 

'  McMahan  r.  Green,  12  Ala.  71;  Hester  v.  Keith,  1  Ala.  310;  Johnson  v. 
McLane,  7  Blackf.  501;  Hale's  Appeal,  44  Pa.  St.  438. 

•^  Mifflin  V.  Will,  2  Yeates,  177. 

^  France  v.  Hamilton.  20  How.  Pr.  180. 

*  Ray  V.  Birdscye,  5  Denio,  019;  Thompson  v.  Van  Vetchen,  5  Abb.  Pr. 
458;  Butler?'.  Maynard,  11  Wend.  548;  Hendricks  v.  Rol)inson,  2  Johns.  Ch. 
283;  Williams  v.  Slidly,  37  N.  Y.  375;  Charron  r.  BoswcU,  18  Gratt.  216.  An 
execution  lien,  thougli  not  consummated  by  levy,  will  in  New  York  prevail 
over  a  mortgage  to  secure  a  pre-existing  debt,  and  also  over  a  general  assign- 
ment for  the  benefit  of  creditors.  Warner  v.  Paine,  3  Barb.  Ch.  030;  Slade  v. 
Van  Vetcheu,  11  Paige,  21;  Ray  v.  Birdseye,  5  Denio,  619. 


§201  THE  LIEN  OF  EXECUTIONS.  676 

in  tlio  hands  of  dillerent  officers,  the  one  first  levied 
obtiiiiis  priority.' 

§  201.     Commences  in  Some  States  at  the  Levy.  — 

As  the  plaintitr,  wIumi  hr  lias  takon  out  his  execution, 
is  autliorizod  thereby  to  seize  upon  all  the  personal 
property  (^f  tlie  defendant  liable  to  forced  sale,  there 
seems  but  little  necessity  of  allowing  him  any  lien  ou 
the  defendant's  goods,  otherwise  than  such  as  may  be 
acquired  by  an  actual  seizure  thereof.  If  he  really  de- 
signs to  execute  his  writ,  he  ought  to  proceed  with 
diligence.  Personal  property  is  constantly  being  sub- 
jected to  the  necessities  of  commerce.  It  changes 
owners  with  great  rapidity  in  the  course  of  lawful  and 
meritorious  business  relations.  It  ought  not  to  be  un- 
necessarily tied  up  in  the  hands  of  any  owner.  It  is 
true  that  statutes  can  be  enacted,  which,  like  those  in 
New  York,  protect  purchasers  and  encumbrancers  in 
srood  faith  without  notice.^  But  w^ithout  such  statutes, 
transfers  made  to  defraud  creditors  are  void ;  and  thus, 
without  giving  any  lien  to  executions,  the  law  avoids 
the  only  transfers  against  which  its  powers  ought  to 
be  directed.  If  an  execution  is  a  lien,  except  as  against 
transfers  in  good  faith,  then  plaintiffs,  in  directing 
levies,  and  officers  acting,  w^hether  with  or  without 
directions,  are  constantly  })laced  in  the  most  embar- 
rassing circumstances,  as  they  are  required  to  deter- 
mine, at  their  peril,  whether  an  alleged  transfer  was 
made  in  sood  or  in  bad  faith.  In  several  of  the  states 
executions  no  longer  create  liens,  statutes  having  been 

1  McCall  V.  Trevor,  4  Blackf.  49G;  Moore  v.  Fitz,  15  Iiul.  43;  Coinmoa- 
wealth  V.  Stratton,  7  J.  J.  Marsh.  90;  Kelly  v.  Haggin,  3  J.  J.  Marsh.  212; 
Million  V.  Commonwealth,  1  B.  Mon.  .310. 

^  Wciaenfeld  r.  McLean,  9G  N.  C.  248. 


577  THE  LIEN  OP  EXECUTIONS.  §202 

enacted  under  which  the  lien  does  not  commence  until 
the  levy  of  the  writ/ 

§  202.  With  Respect  to  the  Duration  of  an  Execu- 
tion lien,  the  laws  and  decisions  in  the  various  states 
are  by  no  means  harmonious.  In  Virginia  it  outlives 
the  execution,  and  retains  its  vitality  till  the  judgment 
on  which  the  writ  was  issued  is  satisfied,  or  is  barred 
by  the  statute  of  limitations,  or  is  otherwise  extin- 
guished.^ In  Missouri  the  lien  is  continued  by  statute 
until  a  sale  of  property  taken  in  execution  can  be 
made.^  But  as  the  object  of  the  lien  is  to  prevent  the 
transfer  of  property  liable  to  be  taken  under  the  writ, 
the  general  rule  is,  that  the  lien  continues  while  the 
writ  remains  in  force,  so  that  the  property  may  be  taken 
and  sold  under  it,  and  no  longer.^  If  a  levy  is  made 
under  an  execution,  the  officer  thereby  obtains  a  special 
property  in  the  goods  levied  upon.  He  may  retain 
possession,  and  make  a  sale  after  the  return  day  of  the 
writ.  Such  sale  is  usually  made  under  a  venditioni  ex- 
ponas, though  the  issuing  of  that  writ  is  not  indispen- 
sable, and  in  fact,  seems  to  be  unnecessiiry,  except 
where  the  officer  refuses  to  proceed.  A  sale  made 
under  a  venditioni  exponas  relates  back  to  the  delivery 
or  teste  of  the  original  execution."  Hence  a  sale  after 
the  lapse  of  two  years,  during  which  plaintiff  constantly 

'Johnson  v.  Gorhani,  G  Cal.  195;  Bagley  v.  Ward,  37  Cal.  121;  Reeves  v. 
Sebern,  IG  Iowa,  2:?4;  85  Am.  Dec.  51.3;  Wagner's  Statutes  of  Missouri,  p.  607; 
Tullia  Z7.  Brawley,  3  Minn.  277;  sec.  421,  Code  of  Ohio;  Mourcein  v.  Burton,  17 
Tex.  206;  McMahan  v.  Hall,  .36  Tex.  59;  Russell  v.  Lawtoii,  1-4  Wis.  202;  Knox 
V.  AVebster,  18  Wis.  40(5;  86  Am.  Dec.  779;  Wilson's  Appeal,  90  Pa.  St.  370; 
Albrecht  ?'.  Long,  25  Minn.  163. 

'■'  Charron  v.  Boswell,  18  fJratt.  2IG. 

*  Wood  V.  Messerly,  46  Mo.  255. 

*  Carr  r.  Glasscock,  3  Gratt.  343;  Humphreys  v.  Hitt,  6  Gratt.  509;  52  Am. 
Dec.  133. 

'  Taylor  v.  Mumford,  3  Humph.  00. 
Vol.  I.— 37 


§202  THK  LIEN  OP  EXECUTIONS.  878 

kojit  writs  ot'  rcnd/tioni  cxpoiuii  in  the  officer's  hands,  was 
held  to  be  valid,  and  to  (^ntitle  the  plaintiif  to  the  same 
rifjhtsas  thoiiijh  it  had  been  made  durinc:  the  life  of  the 
original  writ/  But  when  sales  are  made  under  this  writ 
the  lien  of  the  execution  has  merged  into  the  lien  of  the 
levy;  for  in  the  absence  of  a  levy  there  can  be  no  sale 
under  a  venditioni  exponas.  The  question,  therefore, 
when  a  valid  levy  has  been  made  under  the  writ,  is  not 
with  respect  to  the  duration  of  the  execution  lien,  but  to 
the  continuance  or  duration  of  the  lien  etiected  or  con- 
sumuiated  by  the  levy.  If  no  levy  has  been  effected  un- 
der a  writ,  and  the  return  day  has  passed,  so  that  no  levy 
can  be  made  thereunder,  the  writ  is  functus  officio.  The 
lien  was  conceded  only  that  the  writ  miglit  be  more 
surel}'  and  effectually  executed.  But  when  the  writ  is 
legally  dead,  and  can  never  be  executed,  it  would  seem 
that  its  lien  must  also  die  with  it.  Nor  do  we  know  of 
any  reason  why  it  should  be  conceded  a  resurrection 
and  second  life.  A  new  or  alias  execution  may  be  pro- 
cured, with  its  attendant  lien,  and  thereunder  a  levy 
may  be  made  upon  the  property  of  the  defendant;  but 
we  think  the  better  rule,  in  the  absence  of  any  statutory 
regulation  of  the  subject,  is  that  the  alias  must  be 
treated  as  a  new  proceeding  having  no  lien  of  its  own 
antedating  its  teste  or  delivery,  and  no  power  to  revive 
or  continue  the  lien  of  anterior,  defunct  writs.  The 
power  of  an  alias  to  effect  such  a  continuance  seems  to 
be  affirmed  by  several  North  Carolina  cases  ;^  but  we 
know  not  how  to  reconcile  these  cases  with  a  more  re- 
cent one  in  the  same  state.^     Alabama  has  been  far 

^  Locke  V.  Coleman,  4  T.  B.  Mon.  316. 

2  Allen  V.  Plummer,  ij'.i  N.  C.  307;  McLean  v.  Upchurch,  2  Murph.  353; 
Gilky  V.  Dickersoii,  2  Hawks,  341 ;  Harding  v.  Spivey,  8  Ired.  03;  Brasficld  v. 
"WhitakcT,  4  Hawks,  309;  Yarljorough  v.  State  Bank,  2  Dev.  23. 

^  Ross  V.  Alexander,  05  N.  C.  577. 


579  THE  LIEN  OF  EXECUTIONS.  §202 

more  fertile  in  decisions  upon  this  topic  than  any  other 
state.  When  the  question  first  arose  in  that  state,  the 
court  denied  the  continuing  existence  of  the  lien  of  a 
writ  which  had  been  returned  into  court  with  the  in- 
dorsement that  no  goods  of  the  defendant  could  be 
found.^  But  at  a  later  date,  the  interpretation  of  the 
statute  of  this  state  permitted  the  return  of  an  execu- 
tion to  court,  without  impairing  its  lien,  provided  an 
alias  issued  before  another  term  elapsed.^  "  If,  how- 
ever, the  execution  of  a  junior  judgment  creditor  was 
levied,  and  before  a  sale  under  it  the  senior  judgment 
creditor  had  execution  issued  and  placed  in  the  hands 
of  the  sheriff,  the  lien  revived,  and  would  prevail  over 
that  of  the  junior  judgment  creditor."^  A  later  statute 
was  construed  as  making  the  loss  of  the  lien  occasioned 
by  permitting  a  term  to  pass  after  the  return  of  the 
orio-inal  writ,  and  before  the  issuing  of  an  alias,  per- 
emptory and  irrevocable.* 

But  in  the  majority  of  the  states  in  which  the  ques- 
tion has  been  adjudicated,  the  lien  of  an  execution, 
except  as  to  property  levied  upon  and  retained  in  cus- 
tody, ceases  with  the  return  day  of  the  writ.  An  alias 
writ  becomes  a  lien  from  its  teste  or  delivery,  just  as  an 
original  writ  would  in  the  same  state.  It  has  no  lien 
anterior  to  such  teste  or  delivery;  nor  can  it  perpetuate 
or  renew  the  lien  of  a  prior  writ.^     The  effect  on  an 

1  McBroom  v.  Rives,  1  Stew.  72;  Gary  v.  Gregg,  3  Stew.  433;  Dargan  i>. 
Waring,  11  Ala.  988;  4G  Am.  Dec.  234. 

2  Wood  V.  Gary,  5  Ala.  43;  Johnson  v.  Williams,  8  Ala.  529. 

»  Toney  v.  Wilson,  51  Ala.  500;  Collingsworth  v.  Horn,  4  Stew.  &  P.  237; 
24  Am.  Dec.  753;  Parker  v.  CoflFey,  52  Ala.  32. 

<  Toney  v.  Wilson,  51  Ala.  501;  Perkins  v.  Briertield  I.  &  C.  Co.,  77  Ala. 
403;  Carlisle  v.  May,  75  Ala.  502. 

*  Kregelo  v.  Adams,  9  Biss.  343;  3  Fed.  Rep.  628;  Sturgis's  Appeal,  86  Pa. 
St.  413;  Brown  v.  Tlie  Sheriff,  1  Mo.  154;  Garner  v.  Willis,  Breese,  368;  Wat- 
rous  V.  Lathrop,  4  Sand.  700;  Union  Bank  v.  McClung,  9  Humph.  91;  Maul  v. 
Scott,  2  Cranch  C.  C,  367;  Rosa  v.  Alexander,  65  N.  C.  577. 


§203  THE  LIEN  OF  EXECUTIONS.  580 

execution  lion  of  an  injunction  temporarily  arresting 
the  execution  of  the  writ  is  not  well  settled.  On  one 
side  it  is  contended  that  if  an  officer  has  two  writs,  and 
the  elder  is  enjoined,  it  is  his  duty  to  proceed  under 
the  youno^er;  and  tliat,  as  a  necessary  consequence,  the 
elder  must  lose  its  lien,^  unless  the  injunction  is  dis- 
solved before  the  sale  is  made  under  tlie  junior  writ." 
On  the  other  side,  it  is  said  that  "  when  the  operative 
energy  of  an  execution  has  been  suspended  by  an  in- 
junction, a  .sale  under  a  junior  execution  does  not  affect 
the  lien  acquired  by  such  elder  execution,  but  the 
property  in  the  hands  of  any  person  remains  liable  to 
lev}'"  when  the  injunction  is  removed."^  Still  other 
cases  make  the  eflect  of  the  injunction  dependent  on 
security  being  given  when  it  issues,  holding  that  if  the 
defendant  is  indemnified  from  loss  by  an  appropriate 
bond,  his  lien  is  thereby  destroyed ;  while  in  the  absence 
of  such  bond,  that  the  lien  continues,  and  will  become 
effective  whenever  the  removal  of  the  injunction  affords 
an  opportunity  to  enforce  the  execution.* 

§  203.    Liens  under  Writs  of  Equal  Priority. — 

Writs  delivered  to  the  same  officer  at  the  same  time 
are  equal  as  liens,^  and  are  entitled  to  share  the  pro- 
ceeds of  the  sale  equally,  until  the  smaller  is  satisfied. 
In  South  Carolina  and  Nebraska,  writs  delivered  on  the 
same  day  are  considered  as  if  delivered  at  the  same 
time."     In  the  last-named  state,  the  statute  declares 

1  Mitchell  r.  Anderson,  1  Hill  (S.  C  ),  09;  26  Am.  Dec.  158. 
■■' Duchett  ?'.  Dalrymple,  1  Rich.  143. 

*  Lynnr.  Gridley,  Walker  (Miss.),  548;  12  Am.  Dec.  591. 

*  Conway  v.  .Tett,  3  Yerg.  481;  24  Am.  Dec.  590. 
'"'  Farquliarson  i\  Ruger,  1  Cow.  215. 

•Bachman  v.  Sulzbacker,  5  S.  C.  58;  Ex  parte  Stagg,  1  Nott  &  McC.  405. 
See  also  sec.  424,  Ohio  Code  of  Procedure. 


5S1  THE  LIEN  OF  EXECUTIONS.  §204 

that  in  such  cases  if  sufficient  moneys  are  not  made  to 
satisfy  all  the  writs,  "the  amount  made  shall  be  distrib- 
uted to  the  several  creditors  in  proportion  to  their 
respective  demands."^  Where  two  judgments  or  two 
executions  have  no  priority  over  each  other  as  liens, 
priority  may  be  gained  by  activity  and  diligence.  He 
who  first  begins  to  execute  his  writ  upon  the  property 
of  the  defendant  obtains  the  right  to  seek  satisfaction 
out  of  such  property  as  he  has  seized,  to  the  exclusion 
of  creditors  less  diligent  than  he,  but  other\^ise  equally 
meritorious.^  If  a  clerk  delivers  several  executions  to 
the  sheriff,  one  after  another  in  immediate  succession, 
this  is  not  such  "a  difference  in  the  time  of  delivery  as 
to  give  one  a  preference  over  the  other."  If  he  how- 
ever indorses  on  them  dates  indicating  that  some  of 
them  were  delivered  to  him  one  minute  before  the 
others,  he  is  bound  by  such  indorsement,  and  will  not 
be  permitted  to  show  that  the  deliveries  were  simulta- 


neous.^ 


§  204.    Liens  of  Executions  from  Federal  Courts. 

—  The  various  states  have  no  power  to  enact  laws 
regulating,  in  any  respect,  the  procedure  of  the  courts 
of  the  United  States,  nor  prescribing  or  limiting  the 
lien  of  any  execution  issuing  from  those  courts.  The 
United  States  government  has  the  exclusive  authority 
to  enact  and  to  interpret  laws  regulating  the  process  of 
its  courts.     Such  process  is  entirely  free  from  the  do- 

1  State  V.  Hunger,  17  Neb.  16. 

•■«  Smith  V.  Linil,  29  111.  24;  Adams  v.  Dyer,  8  Johns.  247;  5  Am.  Dec.  .344; 
Michaels  v.  Boyd,  1  Cart.  259;  Burney  u.  Boyett,  1  How.  (Miss.)  39;  Reeves 
V.  Johnson,  7  Halst.  .33;  Rockhill  v.  Hanna,  15  How.  189;  Waterman  v.  Has- 
kin,  11  Johns.  228;  Ulrich  v.  Dreycr,  2  Watts,  303;  Shirley  v.  Brown,  80  Mo. 
244. 

'  State  V.  Cisney,  95  Ind.  265. 


§2^>4  THE  LIEN  OF  EXECUTIONS.  682 

minion  of  state  laws,  except  so  far  as  such  laws  have 
been  ailopteil  by  Conj^jress  or  by  the  diOerent  federal 
courts.'  The  act  rei;ulatin<;-  the  procedure  of  tlie  courts 
of  the  Ignited  States  provides  that  "the  party  recovcr- 
iuLi'  a  jud;_cnient  in  any  common-law  cause,  in  any  cir- 
cuit or  district  court,  shall  be  entitled  to  similar  remedies 
upon  the  same,  by  execution  or  otherwise,  to  reach  the 
property  of  the  judgment  debtor,  as  are  now  provided 
in  like  causes  by  the  laws  of  the  state  in  which  such 
court  is  held,  or  by  any  such  laws  hereafter  enacted 
which  may  be  adopted  by  general  rules  of  such  circuit 
or  district  court;  and  such  courts  may,  from  time  to 
time,  by  general  rules,  adopt  such  state  laws  as  may 
hereafter  be  in  force  in  such  state  in  relation  to  remedies 
upon  judgments,  as  aforesaid,  by  execution  or  other- 
wise."^ It  results,  from  this  section,  that  whether 
executions  from  the  federal  courts  shall  be  treated  as 
liens  from  their  teste,  from  their  delivery,  or  from  their 
levy,  must  be  determined  from  inspection  of  such  laws 
of  the  state  wherein  the  writ  is  issued  as  were  in  force 
at  the  passage  of  the  section  quoted,  or  have  since  been 
adopted  by  the  courts  in  virtue  of  the  powers  conferred 
by  that  section.  Cases  of  conflict  frequently  arise  be- 
tween WTits  issued  by  federal  courts  and  delivered  to 
the  United  States  marshal,  and  w^its  issued  by  state 
courts  and  placed  in  the  hands  of  officers  of  the  state. 
Under  such  circumstances,  the  writ  which  is  first  levied 
thereby  obtains  precedence,  and  becomes  entitled    to 

1  Wayman  v.  Southard,  10  Wheat.  1;  Bank  of  United  States  v.  Halstead, 
10  Wheat.  51;  Boyle  v.  Zachario,  G  Pet.  G48;  Beers  v.  Hau^hton,  9  Pet.  .331; 
Ross  V.  Duval,  13  Pet.  45;  United  States?;.  Knight,  14  Pet.  301;  Aniisr'.  Smith, 
IG  Pet.  .303;  Massingill  v.  Downs,  7  How.  7G0;  Corwin  v.  Benham,  2  Ohio  St. 
36;  Carroll  v.  Watkins,  1  Ahb.  474;  Cropsey  v.  Randall,  2  Blatchf.  341;  Ward 
r.  Chamberlain,  2  Black.  430;  Freeman  on  .Judgments,  sec.  403. 

^  Deity's  Federal  Procedure,  sec.  UIG. 


583  THE  LIEN  OF  EXECUTIONS.  §205 

satisfaction  out  of  the  proceeds  of  the  property  seized.^ 
The  rule  seems  to  be  universally  recognized,  that  when 
two  different  tribunals  have  the  concurrent  right  to  seize 
upon  property,  that  tribunal  whose  officers  first  accom- 
plish a  seizure  obtains  an  exclusive  jurisdiction  over  the 
property  seized,  which  the  other  tribunal  will  not  at- 
tempt to  disturb.^ 

§  205.  The  Lien  of  an  Execution  does  not  Continue 
tlie  Lien  of  a  Judgment.  —  Lands,  while  bound  by  a 
judgment,  are  nevertheless  so  far  the  subjects  of  sub- 
sequent conve^'ance  and  encumbrance  that  such  con- 
veyance or  encumbrance  can  only  be  destroyed  by 
a  sale  of  the  property  under  the  judgment  made  dur- 
ing the  life  of  its  lien.  In  many  instances  sales  have 
been  made  b}^  judgment  debtors  during  the  life  of  the 
judgment  liens.  Subsequently,  and  while  the  liens 
were  still  in  force,  executions  have  been  taken  out 
and  levied,  but  no  sales  were  made  until  after  the  time 
designated  by  law  for  the  termination  of  the  judg- 
ment lien.  In  Missouri  it  was  held  that  the  lien  of 
the  execution  continued  that  of  the  judgment;  and 
therefore,  that  the  execution  sale  divested  all  titles  and 
liens  acquired  from  the  debtor  subsequently  to  the  judg- 
ment.^    In  all  the  other  states,  so  far  as  we  are  aware, 

1  ruUian  v.  Ooborne,  17  How.  471;  Brown  v.  Clarke,  4  How.  4;  Williama 
r.  Beuedict,  S  How.  107;  Logan  v.  Lucas,  59  III.  237;  Hagan  r.  Lucas,  10  Pet. 
400;  Muuiou  v.  Harroun,  .34  111.  422;  Schallcr  v.  Wickersham,  7  Cold.  376; 
Rugglcs  V.  Simonton,  3  Bias.  325;  Leopold  v.  Godfrey,  11  Biss.  158. 

■^Fox  V.  Heuiptield  II.  R.  Co.,  2  Abb.  151;  Riggs  v.  Johnson,  6  Wall. 
197;  Crane  v.  McCoy,  1  Bond,  422;  Moore  v.  Withenljurg,  13  La.  Ann.  22; 
Johnson  V.  Bishop,  1  Woolw.  324;  Bill  v.  N.  A.  Co.,  2  Biss.  390;  Bell  v.  Loaa 
&  T.  Co.,  1  Biss.  200;  Chapin  v.  James,  7  Chic.  L.  N.  33;  U.  I.  Co.  v.  R.  R. 
Co.,  7  Chic.  L.  N.  33;  Taylor  v.  Carryl,  20  How.  583;  Peck  v.  Jenness,  7  How. 
612;  Suiith  r.  Mclvcr,  9  Wheat.  532;  Freeman  v.  Howe,  24  How.  450;  Buck 
V.  Colbath,  3  Wall.  3:}4. 

3  Bauk  of  Missouri  v.  Wells,  12  Mo.  3G1. 


§•200  THE  UEN  OF  EXECUTIONS.  584 

the  decisions  made  upon  this  subject  are  in  conflict  with 
that  mado  in  ^lissouri,  and  affirm  that  a  sale  made 
after  the  expiration  of  a  judgment  lien  is  to  be  treated 

as  thougli  such  lien  had  never  existed.^ 

§  20G.  No  Lien  while  the  Writ  is  not  Being  Exe- 
cuted in  Good  Faith.  —  IJy  the  statute  of  113  ElizabctJi, 
c.  b,  executions  taken  out  with  intent  to  hinder,  dela}'', 
or  defraud  creditors,  or  others,  are,  as  against  the 
persons  sought  to  be  hindered,  delayed,  or  defrauded, 
utterly  void.'  The  operation  of  this  statute  upon  the 
lien  of  executions  has  been  the  subject  of  very  frequent 
judicial  decisions,  and  of  occasional  judicial  dissension. 
According  to  a  very  considerable  preponderance  of  the 
authorities,  no  actual  intent  to  hinder,  delay,  or  defraud 
any  one  need  be  shown.  An  execution  and  its  lien 
may  be  avoided  by  such  conduct  on  the  part  of  the 
plaintiff  as  shows  an  improper  use  of  his  writ,  though 
the  motives  influencing  such  conduct,  instead  of  being 
fraudulent,  were  grounded  in  kindness  and  charity 
toward  the  defendant,  and  free  from  the  slightest 
design  to  injure  others.  The  only  proper  use  of  an 
execution  is  to  enfoi'ce  the  collection  of  a  debt,  and  to 
enforce  it  with  a  considerable  degree  of  diligence.  To 
employ  it  for  other  objects  is  inconsistent  with  its 
nature,  and  such  a  perversion  from  its  legitimate  pur- 

>  Tenney  v.  Hemenway,  53  111.  98;  Gridley  v.  Watson,  53  111.  186;  Trapnall 
V.  Pvicbardson,  8  Eng.  543;  Rogers  v.  Druppel,  46  Cal.  654;  Bagley  v.  Ward, 
37  Cal.  121;  Isaac  v.  Swift,  10  Cal.  81;  Dickenson  v.  Collins,  1  Swan,  516;  Roe 
V.  Swart,  5  Cow.  294;  Little  v.  Harvey,  9  Wend.  158;  Tufts  v.  Tufts,  18  Wend. 
621;  Graff  I'.  Kipp,  1  Edw.  Ch.  619;  Pettit  v.  Sheppard,  5  Paige,  493;  Rupert 
r.  Dantzler,  12  Sinedes  &  M.  697;  Beirne  v.  Mower,  13  Smedes  &  M.  427;  Davis 
r.  Ehrmau,  20  Pa.  St.  258;  Birdwell  v.  Cain,  1  Cold.  302;  Sheppard  v.  Bailleul, 
3  Tex.  26;  Conwell  v.  Watkins,  71  111.  488;  Pierce  v.  Fuller,  36  Hun,  179. 

'■'  Smith's  Leading  Cases,  82;  Bradley  v.  Wyndham,  1  Wils.  44;  Snyder  v. 
Hunklenian,  3  Pen.  &  W.  487;  Matthews  v.  Warue,  G  Halst.  295;  Williamson 
V.  Johnston,  7  Halst.  86. 


5S5  THE  LIEN  OF  EXECUTIONS.  §  20G 

poses  as  brings  upon  it  the  penalty  prescribed  b}''  the 
statute  of  Elizabeth.  The  plaintiff  in  execution  may 
desire  to  allow  the  defendant  time  in  which  to  make 
payment,  and  yet  may  wish  to  save  himself  from  all 
hazard  arising  from  his  delay  to  enforce  the  collection 
of  his  judgment.  He  is  likely,  therefore,  to  take  out 
execution  with  a  view  of  binding  defendant's  property, 
but  with  no  intent  to  make  any  immediate  levy  or  sale. 
In  other  words,  he  seeks  to  convert  an  execution  into 
a  mere  mortgage.  This  the  law  does  not  tolerate. 
Whenever  it  can  be  shown  that  the  object  of  the  writ 
was  merely  to  obtain  better  security  for  the  debt,  it  is 
fraudulent  as  against  subsequent  purchasers  or  encum- 
brancers, and  outranked  by  subsequent  executions.^ 
This  rule  can  be  invoked  only  in  favor  of  some  person 
who  could  be  delayed  or  defrauded  by  the  writ.  "It 
is  clear  that  mere  delay  on  the  plaintiff's  part,  in  exe- 
cuting his  judgment,  will  not  affect  his  lien,  as  against 
the  defendant  in  execution,  his  personal  representative 
or  heirs,  who  presumptively  cannot  be  prejudiced  by 
it.  The  principle  upon  whicli  such  a  lien  is  lost  by 
mere  suspension  is  that  of  delay  by  the  plaintiff  for 
the  purpose  of  favoring  the  defendant  in  execution  at 
the  expense  of  other  creditors,  whose  diligence  may  be 
thus  paralyzed  and  rendered  of  no  avail.  It  is,  tliere- 
fore,  justly  confined  to  junior  creditors,  mortgagees,  or 
vendees  who  acquire  intervening  rights  during  the 
time  the  execution  may  be  stayed  by  order  of  plain- 
tiff"^ An  assignee  for  the  benefit  of  creditors,  not 
being  a  bona  fide  purchaser  for  value,  is  in  no  better 

1  Davidson  v.  Wahlron,  31  111.  ]21;  Corliss  v.  Stanbridgc,  5  Rawle,  286; 
Frceburgcr'.s  Ajipeal,  4'J  Ta.  St.  244;  Weir  v.  Hale,  3  Watts  &  S.  285;  Smith's 
Apijeal,  2  Pa.  St.  331;  Price  v.  Shipps,  10  Barb.  585. 

'^  Keel  V.  Larkiu,  Tl  Ala.  4'J3. 


§206  THE  LIEN  OF  EXECUTIONS.  686 

condition  than  his  assignor  to  assail  an  execution  lien 
on  the  ground  of  laches  in  enforcing  the  writ.^     But 
in  order  to  avoid  a  writ,  as  being  issued  for  the  purpose 
of  security  only,  it  must  be  shown  that  the  plaintiff 
gave  some  direction  to  stay  the  executign  of  the  writ, 
or  did  some  other  act  from  which  it  may  be  inferred 
that  he  did  not  intend  to  compel  a  sale.^     The  delivery 
of  a  w^rit  to  an  officer,  with  directions  not  to  levy,  is 
equivalent  to  no  delivery,  and  can  create  no  lien.^     A 
direction  not  to  levy  or  not  to  sell,  unless  compelled  to 
do  so  by  younger  executions,  is  conclusive  that  the 
writ  is  being  used  as  a  mere  security,  or  to  prevent 
other   creditors   from   attempting   to    seize    the   same 
property.     Viewed  in  either  light,  it  is  an  unjustifiable 
use  of  the  writ,  and  until  countermanded  by  a  direction 
to  proceed,  operates  as  an  entire  suspension  of  the  lien 
of  the  writ,  whether  a  levy  has  been  made  or  not.* 
"We  believe  the  doctrine  to  be,  as  the  object  of  an 
execution  is  to  obtain  satisfaction  of  the  judgment  on 
which  it  issues,  on  its  delivery  to  the  proper  officer,  it 
gives  to  the  creditor  a  priority,  because  the  law  im- 
poses the  duty  upon  the  officer  to  execute  it  without 
delay.     Any  act  of  the  creditor,  therefore,  diverting 
the  execution  from  this  purpose,  renders  it  inoperative 
against  other  creditors,  and  clothes  them  with  prior- 
ity.    A  delivery  of  such  a  writ  to  a  sheriff,  instructing 
him  at  the  same  time  to  do  nothing  under  it,  is  really 

1  Griffin  v.  Wallace,  6G  Ind.  410. 

2  Brown's  Appeal,  2G  Pa.  St.  490;  Brown  v.  Berry,  55  Barb.  620. 

3  Cook  V.  Wood,  1  Har.  &  J.  254. 

*  Moore  v.  Fitz,  15  Ind.  43;  Kimball  v.  Hunger,  2  Hill,  3G4;  Foster  v. 
Smith,  13  U.  C.  Q.  B.  243;  Crane  v.  Clark,  Hil.  T.  1828,  N.  B.;  Hamilton  v. 
Bryson,  1  Har.  618;  Hunt  v.  Hooper,  1  Dowl.  &  L.  626;  12  Mees.  &  W.  664;  8 
Jur.  203;  13  L.  J.  Ex.  183;  Pringle  v.  Isaac,  11  Price,  445;  Dunderdale  v. 
Sauvestre,  13  Abb.  Pr.  116;  Flick  v.  Troxsell,  7  Watts  &  S.  65;  McClure  v. 
Ege,  7  Watts,  74. 


587  THE  LIEN  OF  EXECUTIONS.  §206 

no  delivery,  and  confers  no  rights  upon  the  creditor. 
If  a  plaintiff  in  execution  instructs  the  sheriff  to  make 
no  levy  until  he  gives  him  further  orders,  or  until 
another  day,  it  follows,  if,  in  the  mean  time,  an  execu- 
tion comes  to  the  hands  of  an  officer,  with  instructions 
to  proceed,  and  he  actually  does  proceed  and  make  a 
levy,  taking  the  property  into  his  possession,  this 
second  execution  is,  and  should  be  deemed,  first  in  or- 
der ;  and  the  same  is  the  rule  if  the  direction  is,  not  to 
proceed  to  a  levy  unless  urged  by  junior  executions."^ 
In  other  words,  it  is  not  the  mere  issuing  or  delivery 
of  the  writ  which  creates  a  lien ;  but  an  issuing  and  de- 
livery for  the  purpose  of  execution.^ 

The  execution  of  a  writ  for  the  purpose  of  making 
or  keeping  it  effective  as  a  lien  cannot  stop  with  a  mere 
levy  upon  the  property.  If  the  officer  is  instructed  by 
the  plaintiff  not  to  sell  till  further  orders,  the  lien  of  the 
execution  and  levy  becomes  subordinate  to  that  of  any 
subsequent  writ  placed  in  the  officer's  hands  for  ser- 
vice.^ It  is  also  subordinate  to  any  subsequent  mort- 
gage executed  by  defendant  during  a  period  when  the 
writ  is  being  held  up  or  suspended.*  But  it  is  by  no 
means  essential,  in  order  to  postpone  the  lien  of  an  ex- 
ecution, that  the  plaintiff's  purposes  should  be  made 
known  by  so  unmistakable  a  direction  as  that  just  re- 
ferred to.  The  lien  of  an  execution  is  designed  to 
assist  the  plaintiff  while  he  is  seeking  to  enforce  his 
writ.  If  at  any  time  he  is  shown  not  to  be  seeking 
such  enforcement,  then,  during  such  time,  he  is  with- 

1  Gilmore  v.  Davis,  84  111.  489;  Landis  v.  Evans,  113  Pa.  St.  334;  Howes  v. 
Cameron,  23  Fed.  Rep.  324. 

2  Smith  V.  Erwin,  77  N.  Y.  471. 

3  Ala.  Gold  L.  Ins.  Co.  v.  McCreary,  65  Ala.  127. 
*  Burnham  v.  Martin,  54  Ala.  189. 


§•206  THE  LIEN  OF  EXECUTIONS,  588 

out  any  oxecut'u)n  lion,  aiul  is  liable  to  lose  the  benefit 
of  his  writ  tliroiii;!!  the  sale  or  eiieuiiibranee  of  the 
(le fondant's  property,  or  by  the  operation  of  a  junior 
writ.  He  cannot  avoid  this  result  by  sho\vin«^^  that 
his  intentions  were  nieritcn-ious,  or  that  he  knew  of  no 
other  creditors.  Whenever,  by  the  plaintiff's  orders, 
or  by  agreement  between  him  and  the  defendant,  the 
execution  of  the  writ  is  susjiended,  by  directions  not 
to  levy,  or,  after  levy,  by  directions  not  to  sell,  whether 
such  directions  are  permanent  in  their  nature,  or  de- 
signed to  operate  only  until  further  orders  are  given, 
then,  according  to  a  decided  preponderance  of  the  au- 
thorities, the  lien  is  also  suspended,  and  the  execution 
becomes  dormant.^  There  ma}'-  probably  be  some  de- 
lay in  the  service  of  the  writ,  caused  by  the  plaintiff's 
directions,  which  W'ill  not  impair  its  lien,  provided  it 
clearly  appears  that  there  was  no  intent  to  employ  the 
writ  as  a  mere  securit}'.  On  the  day  a  writ  issued, 
the  plaintiff's  attorney  ''told  the  sheriff's  deputy  not 
to  go  to  defendant's  house  until  the  next  day,  as  the 
house  was  torn  up,"  and  on  the  following  morning  in- 
formed the  sheriff'  that  the  ladies  were  clearing  up 
things  in  the  house,  and  suo-jrested  that  that  officer 
might  wait  and  go  up  in  the  afternoon.  The  court 
decided   that  the  lien   was  not  thereby  lost  nor  sus- 

1  Ross  V.  Weber,  2G  111.  221;  Truit  v.  Ludwig,  25  Pa.  St.  145;  Kellogg  i>. 
Griffin,  17  Johns.  274;  Ball  v.  Shell,  21  Wend.  222;  Bailey  v.  Burming,  1  Lev. 
174;  Kempknd  v.  Macauley,  Peake,  GG;  Eberle /,'.  Mayer,  1  Rawie,  UGG;  Hick- 
man V.  Caldwell,  4  Rawle,  370;  Berry  v.  Smith,  3  Wash.  C.  C.  GO;  KaufiFelt's 
Appeal,  y  Watts,  3M;  Commonwealth  v.  Streniback,  3  Rawle,  .341;  24  Am. 
Dec.  351;  Porter  v.  Cocke,  Peck,  30;  Lowry  v.  Coulter,  9  Pa.  St.  349;  Wood 
V.  Gary,  5  Ala.  43;  Branch  Bank  v.  Boughton,  15  Ala.  127;  Wise  v.  Darby,  9 
Mo.  131;  Albertsou  v.  Goldby,  28  Ala.  711;  Knower  v.  Barnard,  5  Hill,  377; 
Hickok  V.  Coates,  2  Wend.  419;  20  Am.  Dec.  3G2;  Rew  v.  Barber,  3  Cow.  272; 
Lovich  r.  Crowder,  8  Barn.  &  C.  132;  2  Moody  &  R.  84;  Slocomb  v.  Blackburn, 
18  Ark.  3(X);  Mickie  v.  Planters'  Bank,  4  Uow.  (Miss.)  130. 


589  THE  LIEN  OF  EXECUTIONS.  §200 

pendecl,  because  "it  cannot  be  doubted  that  what  was 
thus  said  and  susfgested  by  the  plaintiff  in  the  execu- 
tion was  prompted  by  a  desire  to  accommodate  the 
family  of  the  defendant  in  the  execution,  and  cannot 
be  fairly  construed  as  evidence  of  a  design  on  his  part 
to  merely  obtain  a  lien  by  virtue  of  his  execution,  and 
hold  the  same  as  security."^  The  plaintiff  in  tJie  writ 
and  the  officer  intrusted  with  its  execution  must 
necessarily  be  permitted  to  exercise  a  reasonable  dis- 
cretion in  carrying  it  into  effect.  The  plaintiff  is  not 
compelled  to  proceed  at  once  to  a  sale,  when  by  so  do- 
ing he  would  defeat  rather  than  promote  the  objects  of 
the  writ,  or  would  unnecessarity  and  unreasonably  im- 
poverish the  defendant.  Hence  a  reasonable  adjourn- 
ment of  the  sale  does  not  render  the  writ  dormant, 
provided  it  may  still  be  executed  before  the  return 
day.^  So  where  hides  were  levied  upon  in  the  autumn 
while  tanning  in  a  vat,  and  were,  on  that  account,  not 
in  a  fit  condition  to  be  sold  until  the  next  spring,  it 
was  held  that  the  plaintiff  did  not  waive  the  priority 
of  his  writ  by  directing  that  the  sale  be  postponed  till 
they  were  in  condition  to  be  sold.^  An  execution, 
when  delivered  to  an  officer,  is  presumed  to  have  been 
delivered  for  service.*  This  presumption  may,  as  wc 
liavc  shown,  l^c  rebutted  by  proving  that  the  delivery 
was  accompanied  by  directions  staying  the  execution  of 
the  writ.  In  many  instances  the  existence  of  such 
directions  cannot  be  established  by  direct  ]:)roof,  and 
yet  the  manner  in  which  the  officer  has  conducted  him- 

>  Lan.lis  v.  Evans,  113  Pa.  St.  335. 

'Lantz  V.  Worthiiigton,  4  Pa.  St.   153;  Dancy  r.  Hubba,  71  N.  C.  424; 
Logan  V.  Dougherty,  70  N.  C.  558;  Childa  v.  Dilworth,  44  Pa.  St.  123. 
'  Power  V.  Van  liurcn,  7  Cow.  5G0. 
*  Johnson  v.  Crocker,  4  Allen,  94. 


§236  THE  UEN  OF  EXECUTIONS.  690 

self,  aiul  the  lenity'  witli  which  tlic  plahitiiT  lias  viewed 
such  conduct,  indicate  that  the  directions  must  have 
been  L:,'ivi'n,  or  tliat  hy  some  means  the  oflicer  and  the 
plaintirt'  nmst  have  come  to  a  mutual  understanding 
to  dela}'  the  execution  of  the  writ. 

No  doubt  many  cases  may  arise  in  which,  from  all 
the  circumstances,  the  jury  will  be  warranted  in  infer- 
ring directions  for  dela}^,  though  no  direct  proof  can  be 
protluced.  An  execution  cannot  become  dorniant  with- 
out some  fault  on  tlie  part  of  the  plaintiff.  He  is  cer- 
tainly not  liable  for  the  ordinary  neglect  of  the  ofHcers 
with  whom  he  intrusts  his  process.^  And  there  are 
man}'"  cases  in  which  the  broad  declaration  is  made 
that  the  plaintiff  is  not  to  be  deprived  of  the  benefit  of 
his  lien  by  his  mere  acquiescence  in  the  delay  of  the 
officer,  but  only  by  his  direction  to  stay  the  writ.^  As 
the  plaintiff"  is  obliged  to  seek  the  assistance  of  officers 
of  the  law,  who  are  not  always  the  agents  whom  he 
would  prefer  if  allowed  his  choice,  and  as  they  may  be 
guilty  of  laches  in  which  he  may  have  no  complicity, 
tliere  is  a  manifest  propriety  in  exempting  him  from  the 
evil  consequences  of  their  inattention  and  neglect  in 
ordinary  circumstances.  But  he  is  not  without  means 
of  compelling  them  to  act  with  reasonable  promptness. 
His  neglect  for  a  long  period  to  employ  those  means  is 
certainly  either  evidence  of  his  complicity  in  the  delay, 
or  of  efross  laches  in  the  discharo-e  of  his  own  business. 
While  the  property  of  the  defendant  remains  in  his 
possession,  the  lien  of  the  execution  is  a  secret  lien, 
and  as  such  it  ouGfht  not  to  be  favored  in  law.     The 

o 

'  Leach  v.  Williams,  8  Ala.  759. 

»  McCoy  V.  Reed,  5  Watts,  300;  Snipes  v.  Sheriff,  1  Bay,  295;  Russell  v. 
Gihbs,  5  Cow.  390;  Benjamia  v.  Smitli,  12  Wend.  404;  Doty  v.  Turner,  8 
Johns.  20;  Herkimer  Bank  v.  Brown,  G  Hill,  232;  Thomas  v.  Van  Vetchen,  5 
Abb.  Vr.  458. 


591  THE  LIEN  OF  EXECUTIONS.  §206 

property  is  liable  to  be  sold  by  the  defendant  to  pur- 
chasers for  value,  and  without  notice  of  the  lien.  The 
hardship  of  exposing  such  purchasers  to  liens  during  a 
diligent  execution  of  the  writ  can  hardly  be  justified. 
By  what  terms,  then,  can  we  adequately  condemn  the 
rule  of  law  which,  as  against  them,  permits  the  indefi- 
nite continuance  of  the  lien  through  the  laches  or 
acquiescence  of  plaintiffs?  To  the  credit  of  the  judi- 
ciary, let  it  be  said  that  the  rule  that  the  mere  acquies- 
cence of  the  plaintiff  in  delay  cannot  render  the  lien 
dormant,  has  not  been  applied  in  extreme  cases.  In 
Ohio,  a  stallion,  levied  upon  September  11,  1857, 
v/as  left  in  possession  of  the  defendant,  who  sold  it 
November  3,  1858.  The  execution  was  held  to  be 
dormant  as  against  this  purchaser,  because,  as  it  was 
in  the  power  of  plaintiffs  to  have  compelled  a  sale,  they 
were  guilt}^  of  laches  in  not  doing  so.^  Similar  princi- 
ples were  announced  in  Kentucky,  where  a  sale  of 
lands  was  delayed  in  one  case  for  seventeen  months," 
and  in  another  for  three  j^ears;^  and  also  in  New  York, 
where  a  cow  was  sold  after  an  execution  had  lain  for 
thirteen  months  in  the  sheriff's  office  without  a  levy.* 
From  the  rules  stated  in  this  section  concerning  the 
effect  of  a  direction  to  stay  executions,  the  courts  of 
Delaware,  New  Jersey,  and  South  Carolina  dissent. 
In  the  first-named  state,  the  plaintiff  may  safely  in- 
struct the  sheriff  not  to  proceed  unless  compelled  by 
other  judgment  creditors;^  in  the  second-named  state, 

1  Acton  V.  Knowles,  14  Ohio  St.  18. 

2  Owens  V.  Tatterson,  G  B.  Men.  489;  44  Am.  Dec.  780. 

3  Deposit  Rink  r.  Berry,  2  Bush,  236. 

*  Bliss  V.  Ball,  9  Johns.  1.32.  See  Snyder  v.  Beam,  1  Browne,  366;  Wood 
V.  Keller,  2  Miles,  81. 

'■'  Janvier  v.  Sutton,  3  Harr.  (Del.)  37;  Hickman  v.  Hickman,  31Iarr.  (Del.) 
4S4. 


§207  THE  LIEN  OF  EXECUTIONS.  502 

he  may  direct  the  officer  not  to  sell  till  further  orders;^ 
while  in  the  last-named  state,  a  writ  ''lodged  to  bind" 
has  precedence  over  a  subsequent  writ  "  lodged  to  levy 
and  sell.""^  A  staj^  of  execution,  made  by  the  court, 
does  not  affect  the  execution  lien.^  After  a  levy  has 
been  made,  the  property  may  be  left  in  the  possession 
of  the  defendant,  under  an  agreement  that  it  shall  be 
forthcoming  at  the  day  of  sale.  When  and  in  what 
circumstances  this  may  operate  as  a  postponement  of 
the  writ,  in  favor  of  subsequent  purchasers  or  of  junior 
writs,  will  be  considered  in  the  chapter  on  the  levy  of 
executions.  Granting  the  defendant  indulgence,  or 
issuing  a  writ  without  intent  to  execute  it,  does  not 
hnpart  to  p]aintifi"s  claim  a  permanently  fraudulent 
character.  The  writ  may  be  returned  and  an  alias 
issued  on  the  same  judgment.  If  so,  the  lien  of  the 
latter  is  not  impaired  by  the  laches  in  executing  the 
former.*  Even  with  respect  to  the  original  writ,  it 
seems,  that  if  the  plaintiff  after  staying  or  suspending 
its  execution  directs  the  officer  to  proceed,  the  lien  will 
be  revived,  and  made  paramount  to  all  writs  received 
by  the  officer  after  such  direction  to  proceed.^ 

§  207.  Not  Destroyed  during  the  Life  of  tlie  Writ, 
Except  by  Fault  of  Plaintiff.  —  Except  where  lost  by 
abandonment  of  the  levy,  or  by  the  fault  of  the  plain- 
tiff in  staying  the  execution  of  the  writ,  or  in  making 
some  use  of  it  actually  or  constructively  fraudulent, 
the  lien  of  an  execution  seems  not  to  be  lost,  except  by 

*  Cumberland  Bank  v.  Hann,  4  Harr.  (N.  J.)  1G6. 
^  Greenwood  17.  Nay  lor,  I  McCord,  414. 

3  Bain  v.  Lyle,  68  Pa.  St.  GO. 

♦  Huber  v.  Schnell,  1  Browne,  IG;  Arrington  v.  Sledge,  2  Dev,  359;  Roberta 
V.  Oldham,  G3  N.  C.  297. 

■  ^  Freeburger's  Appeal,  40  Pa.  St.  244. 


593  THE  LIEN  OF  EXECUTIONS.  §207 

some  matter  which  is  sufficient  to  deprive  the  writ  of 
all  further  vitality.  No  act  of  the  defendant  can,  as  a 
general  rule,  defeat  or  impair  the  lien/  Hence,  as  has 
been  heretofore  stated,  the  lien  is  not  lost  by  his  re- 
moving the  property  to  another  count}^'^  The  execu- 
tion itself  is  dependent  on  the  judgment,  and  must  be 
destroyed  or  suspended  by  whatever  destroys  or  sus- 
pends the  judgment.  The  lien  of  the  writ  is  therefore 
destroyed  by  the  reversal  or  satisfaction  of  the  judg- 
ment. The  temporary  satisfaction  of  the  judgment 
operates  as  a  temporary  suspension  of  the  lien.  The 
revival  of  the  judgment,  while  it  might  revive  the  lien, 
could  not  do  so  to  the  prejudice  of  intermediate  pur- 
chasers or  encumbrancers.  Taking  the  defendant  in  exe- 
cution is  for  the  time  being  a  satisfactionof  the  judgment, 
and  therefore,  must  necessarily  suspend  the  execution 
lien.^  A  forthcomino-  bond  is  in  some  states  considered 
as  a  satisfaction  of  the  writ,  and  hence  as  a  suspension 
of  the  execution  lien.*  A  similar  effect  is  produced  by 
replevying  an  execution,  "  for  by  replevying  the  debt  the 
execution  becomes  satisfied,  and  it  would  be  preposter- 
ous to  suppose  that  a  lien,  created  for  the  purpose  of 
discharging  an  execution,  could  continue  to  exist  after 
the  execution  itself  is  satisfied."'^  But  in  other  states 
a  forthcoming  bond,^  or  a  bond  given  to  stay  execu- 

'  Couchraan  v.  Maupin,  78  Ky.  ,33. 

2  MitclicU  V.  Ashby,  78  Ky.  254;  see  also  Phegley  v.  Steamboat,  33  Mo.  4G1; 
84  Am.  Dec.  57. 

*  Rockhill  V.  Hanna,  15  How.  189;  Snead  v.  McCoull,  12  How.  407. 

*  Brown  v.  Clark,  4  How.  4;  King  v.  Terry,  0  How.  (Miss.)  513;  Withcr- 
spoou  V.  Spring,  3  How.  (Miss. )  GO;  Bank  of  United  States  v.  Patton,  5  How. 
(Miss.)  200;  Parker  r.  Dean,  45  Miss.  408;   Malono  v.  Al)bott,'3  Humph.  532. 

*  Harrison  v.  Wilson,  2  A.  K.  Marsh.  547. 

•^Campbell  v.  Spruce,  4  Ala.  543;  Doremus  v.  Walker,  8  Ala.  194;  43  Am. 
Dec.  634;  Babcock  v.  Williams,  9  Ala.  150;  Branch  Bank  v.  McCoUum,  20  Ala. 
280. 

Vol.  I. -38 


8207  THE  UEN  OF  EXECUTIONS.  fiM 

tion/  docs  not  satisfy  i\\c  writ,  and  licMieo  it  does  not 
destroy  tho  Tu^n.  ll"  property  is  taken  lVi)ni  the  officer 
in  a  rr}^levin  suit,  hond  hoing  given  lor  its  return  if 
the  suit  results  in  his  iavor,  neither  the  bond  nor  the 
temporary  loss  of  possession  destroys  the  execution 
lien.  If  the  suit  terminates  in  his  iavor,  the  officer 
must  rotake  the  property,  and  sell  it  under  his  writ." 
If  there  are  two  or  more  executions  in  an  ollieer's  hands 
under  which  a  levy  has  been  made,  and  the  officer  re- 
quires a  bond  of  indemnit}^,  which  the  holder  of  the 
senior  writ  refuses  to  give,  and  the  holder  of  the  junior 
writ  gives,  the  latter,  by  a  statute  of  Alabama,  obtains 
precedence  over  the  holder  of  the  elder  writ.^  In 
Pennsylvania,  while  an  officer  held  property  under 
three  writs,  a  bond  of  indemnity  was  required.  It  was 
given  by  the  holder  of  the  junior  writ,  and  refused  by 
the  others.  The  officer  thereafter  proceeded  to  sell 
the  property  under  all  the  writs.  It  was  held  that  the 
senior  writs  had  not  lost  their  priority,  and  must  first 
be  satisfied,  because  there  was  no  statute  giving  prece- 
dence to  the  giver  of  the  bond  of  indemnity,  and  be- 
cause, while  the  officer  might  have  abandoned  his 
levies  under  the  senior  writs,  he  had  not  done  so.* 
But  if,  on  the  refusal  of  the  holder  of  a  writ  to  give  a 
bond  of  indemnity,  the  officer  surrenders  possession  of 
the  property  to  the  claimant,  the  lien  of  the  execution 
ceases  to  operate.  Upon  the  subsequent  giving  of  the 
bond,  the  officer  may  again  take  the  property  to  satisfy 

1  Branch  Bank  v.  Curry,  13  Ala.  .S04;  Brush  v.  Sequin,  24  111.  254;  Lantz  v. 
Worthington,  4  Ta.  St.  15.3;  45  Am.  Dec.  G82;  Sedgwick's  Appeal,  7  Watts  & 
S.  260;  Hastings  v.  Quiglcy,  4  Pa.  L.  .1.  220. 

«  Ferguson  v.  ^yillialn.s,  3  B.  Mon.  304;  39  Am.  Dec.  406. 

3  Pickard  r.  Peters,  3  Ala.  493. 

♦  Girard  Bank  v.  P.  &  N.  K.  R.  Ca,  2  Miles,  447. 


595  THE  LIEN  OF  EXECUTIONS.  §  207 

the  writ;  but  he  cannot  do  so  to  the  prejudice  of  rights 
acquired  while  the  claimant  was  in  possession/ 

In  some  of  the  states  the  right  of  an  officer  to  de- 
mand indemnity  is  denied.  In  such  states  the  refusal 
to  give  a  bond  of  indemnity  does  not  affect  the  rights 
of  the  plaintiff  to  the  fruits  of  the  execution,  and  there- 
fore cannot  impair  its  lien.^  The  better  rule  seems  to 
be,  that  if,  after  a  levy  upon  property  a  claim  is  made 
thereto  by  a  stranger  to  the  writ,  in  consequence  of 
which  the  sheriff  demands  a  bond  of  indemnity  before 
proceeding  further,  and  some  of  the  plaintiffs  give  such 
bond  and  others  do  not,  the  latter  are  estopped  from 
claiming  the  proceeds  of  the  sale  of  the  property  by 
their  refusal  to  indemnify  the  officer  from  the  conse- 
quences of  retaining  such  property  and  making  the 
sale.^  An  execution  lien  extends  to  property  conveyed 
by  the  defendant  for  the  purpose  of  hindering  or  de- 
frauding his  creditors,  and  may  be  made  productive  by 
a  sale  of  the  property  under  the  writ,  and  without  seek- 
ing the  aid  of  chancery.  Other  creditors  of  the  same 
defendant  may  prefer  to  obtain  the  aid  of  equity,  and  be- 
fore proceeding  at  law,  may  seek  by  a  creditor's  bill  to 
remove  or  have  declared  void  the  fraudulent  obstruction 
which  the  debtor  has  placed  in  their  way.  By  so  doing, 
they  cannot  destroy  or  obtain  any  precedence  over  a 
pre-existing  execution  lien.  That  lien  is  perfect  at  law. 
"A  court  of  equity,  in  dealing  with  legal  rights,  adopts 
and  follows  tlie  rules  of  law,  in  all  cases  to  which  those 
rules  are  applicable ;  and  whenever  there  is  a  direct  rule 
of  law  governing  the  case  in  all  its  circumstances,  the 

>  Otey  V.  Moore,  17  Ala.  280;  52  Am.  Dec.  173;  Gotten  v.  Thompson,  25  Ala. 
671. 

»  A.lair  v.  McDaniel,  I  Bail.  158;  19  Am.  Dec.  664. 

»  Smith  V.  Osgood,  46  N.  H.  178;  Burnett  v.  Handlcy,  8  Ala.  685;  post,  §  275. 


§207  THE  LIEN  OF  EXECUTIONS.  693 

court  i-^  as  nuuli  bound  by  it  as  would  be  a  court  of 
law,  if  tho  controversy  were  there  pending.  The  court 
comes  as  an  auxiliary  to  give  oUect  to  and  render  more 
available  legal  liens,  not  to  displace  them,  nor  to  sub- 
vert the  order  of  priority  which  the  law  has  cstab- 
li>hed."^  If,  on  the  other  hand,  the  holder  of  the  senior 
lien  files  his  bill  to  remove  fraudulent  obstructions, 
such  lien  is  not  lost  by  the  delay  required  for  the 
successful  prosecution  of  his  suit."  The  suspension  or 
delay  of  plaintiff's  proceedings  resulting  from  an  order 
of  court  not  obtained  at  his  instance  does  not  destroy 
his  lieu.  When  such  suspensive  order  terminates  or  is 
vacated,  he  may  proceed,  and  in  so  proceeding,  is  enti- 
tled to  the  benefit  of  the  lieu  existing  in  his  favor  when 
his  progress  was  arrested  by  such  order.  Otherwise 
he  would  be  deprived  of  a  valuable  right,  and  without 
means  of  legal  redress.  And  the  general  rule  is,  that 
the  plaintiff,  while  guilty  of  no  fault  or  neglect  on  his 
part,  will  not  be  deprived  of  his  lien  "without  at  least 
having  a  full  remedy  against  the  sheriff,  or  some  other 
officer,  on  his  official  bond."^  It  is  well  settled  that 
an  execution  lien  cannot  be  displaced  by  subsequent 
proceedings  under  statutes  relating  to  bankrupts.  The 
rights  of  the  assignee  of  a  bankrupt  debtor  are  always 
subordinate  to  all  judgment  ■*  and  execution  liens  to 
which  the  bankrupt's  estate  was  subject  when  the  peti- 
tion in  bankruptcy  was  filed.     Such  liens  can  be  avoided 

1  Matthews  v.  Mobile  M.  Ins.  Co.,  75  Ala.  90. 

2  Shupher.l  r.  Woodfolk,  10  Lea,  593. 

^  Kightlinger'd  Appeal,  101  Pa.  St.  546. 

*  Witt  V.  Hereth,  8  Chic.  L.  N.  40;  13  Nat.  Bank.  Reg.  106,  6  Biss.  474; 
Webster  v.  Woolbridge,  3  Dill.  74;  lu  re  Weeks,  4  Nat.  Bank.  Reg.  364;  MCeks 
t^  Whatley,  10  Nat.  Bank.  Reg.  501;  Haworth  v.  Travis,  13  Nat.  Bank.  Reg. 
145;  In  re  Hambright,  2  Nat.  Bank.  Reg.  502;  Reed  v.  Bullington,  11  Nat.  Bank. 
Reg.  408;  Phillips  v.  Bowdoin,  14  Nat.  Bank.  Reg.  43;  Winship  v.  Phillips,  14 
Nat.  Bank.  Reg.  50. 


597  THE  LIEN  OF  EXECUTIONS.  §207 

only  by  showing  that  they  were  obtained  in  pursuance 
of  a  purpose  to  avoid  or  delay  the  operation  of  such  stat- 
utes; and  this  purpose  will  not  be  inferred  merely  from 
the  fact  that  the  debtor  did  not  defend  the  action,  or 
that  he  was  known  to  be  in  an  insolvent  condition.^ 

Note.  —Concerning  the  Right  to  Prosucute  Liens  after  Proceedings 
IN  Bankruptcy  have  been  Instituted.  —  It  must  be  remembered  it  does 
not  necessarily  follow,  because  i^roperty  is  charged  with  a  valid  lien,  that 
such  lien  can  be  made  productive  by  proceedings  in  the  state  courts.  The  re- 
spective authority  of  the  state  and  federal  courts,  in  the  enforcement  of  such 
liens,  has  been  the  subject  of  a  vast  amount  of  judicial  dissension,  and  has 
occasioned  the  most  irreconcilable  decisions  and  the  most  distressing  doubts. 
On  the  one  side,  the  claim  is  made  that  the  federal  courts  proceeding  in 
bankruptcy  have  exclusive  jurisdiction  over  all  the  estate  of  the  bankrupt, 
and  all  liens  thereon;  that  the  holder  of  the  lien  must  in  all  cases  present  his 
claim  against  the  bankrupt  to  the  tribunal  having  charge  of  the  bankruptcy 
proceetUngs;  and  either  have  his  lieu  satisfied  out  of  the  proceeds  of  the  estate 
when  r3alized  in  that  tribunal,  or  else  seek  permission  to  proceed  in  the  state 
courts.     In  re  Bridgeman,  2  Nat.  Bank.  Reg.  312;  In  re  Bigelow,  1  Nat.  Bank. 

iMays  V.  Fritton,  20  Wail.  414;  11  Nat.  Bank.  Reg.  229;  Wilson  v.  City 
Bank  of  St.  Paul,  17  Wall.  473;  G  Chic.  L.  N.  149;  9  Nat.  Bank.  Reg.  97;  1  Am. 
L.  T.,  N.  S.,  1;  In  re  Weamer,  8  Nat.  Bank.  Reg.  527;  Haworth  v.  Travis,  13 
Nat.  Bank.  Reg.  145;  In  re  Fuller,  4  Nat.  Bank.  Reg.  29;  In  re  Smith,  1  Nat. 
Bank.  Reg.  599;  In  re  McGilton,  7  Nat.  Bank.  Reg.  294;  Whithed  v.  Pilsbury, 
13  Nat.  Bank.  Reg.  249;  Swope  v.  Arnold,  5  Nat.  Bank.  Reg.  148;  Goddard  v. 
Weaver,  G  Nat.  Bank.  Reg.  440;  Bernstein's  Case,  2  Bon.  44;  Wilson  v.  Childs, 
and  Aushutz  v.  Campbell,  8  Nat.  Bank.  Reg.  527;  In  re  Black,  2  Nat.  Bank.  Reg. 
171;  In  re  Kerr,  2  Nat.  Bank.  Reg.  388;  Marshall  v.  Knox,  8  Nat.  Bank.  Reg.  97; 
Appleton  V.  Bowles,  9  Nat.  Bank.  Reg.  354;  Smith's  Case,  2  Ben.  432;  1  Nat. 
Bank.  Reg.  599;  Reeser  v.  Johnson,  76  Pa.  St.  313;  10  Nat.  Bank.  Reg.  4G7; 
Fchley  v.  Barr,  66  Pa.  St.  196;  Chadwick  v.  Carson,  78  Ala.  116;  In  re  Weeks, 
4  Nat.  Bank.  Reg.  116.  See  also  Matter  of  Campbell,  7  Am.  Law  Reg.,  N.  S., 
100;  Campbell's  Case,  1  Abb.  188;  In  re  Bums,  7  Am.  Law  Reg.  105;  Ex 
parte  Donaldson,  7  Am.  Law  Reg.  213;  Scott's  Case,  I  Abb.  336;  Sharman  v. 
Howctt,  40  Oa.  257;  2  Am.  Rep.  576;  In  ro  Hufnagel,  12  Nat.  Bank.  Reg.  554; 
In  re  Hughes  and  Son,  11  Nat.  Bank.  Reg.  452;  Appleton  *».  Bowles,  6  Chic. 
L.  N.  192.  The  same  rule  prevailed  under  preceding  bankrupt  acts,  except 
that  it  applied  to  attachment  as  well  as  to  execution  liens.  Ingraham  v.  Plul- 
lips,  1  Day,  117;  Franklin  Bank  v.  BatcheMcr,  23  Me.  60;  Davenport  r.  Tilton, 
10  Met.  320;  Kittredgc  v.  Warren.  14  N.  H.  509;  Kittredge  v.  Emerson,  15 
N.  H.  277;  Buflum  v.  Seaver,  16  N.  H.  160;  Vreclaud  v.  Bruen,  1  Zab.  214; 
Wells  V.  Brandcr,  18  Miss.  348;  Downer  v.  Brackctt,  21  Vt.  599;  Rowell'.i 
Case,  21  Vt.  620.  The  rights  of  the  holJer  of  an  execution  lien  were  denied 
in  lu  ro  Till-s  and  May,  11  Nat.  Bank.  Reg.  214. 


§207  THE  LIEN  OF  EXECUTIONS.  698 

Reg.  on::  In  ro  Bowie,  1  Nat.  B.ink.  Reg.  C28;  Blum  v.  Ellis,  8  Chic.  L.  N.  1G3; 
13  Nat.  Banli.  Keg.  34.");  la  ro  Ruchlo,  2  Nat.  liank.  Reg.  577;  In  ro  Frizolle,  5 
Nat.  Bank.  Kog.  l'2'2;  In  ro  Cook  and  CUcason,  3  Biss.  lUi;  In  ro  Vogol,  2  Nat. 
Bank.  Rog.  427;  Stuart  r.  llinos,  ONat.  Bank.  Reg.  410;  In  ro  llufnagcl,  12  Nat. 
B.iuk.  Rog.  r)3lJ;  lu  re  Whipple,  13  Nat.  Bank.  Reg.  373;  In  re  Brinkman,  7 
Nat.  Bank.  Reg.  421;  Davis  r.  Anderson,  0  Nat.  Bank.  Rog.  145.  In  some  in- 
stances, proceedings  for  tlio  enforcement  of  liens,  carried  on  in  the  state  courts, 
though  in  the  absence  of  any  special  inhibition  of  the  courts  of  bankruptcy, 
have  buou  declared  void.  Phelps  v.  Sellick,  8  Nat.  Bank.  Reg.  390;  Steni- 
luons  r.  Burford,  39  Tex.  352;  Davis  v.  Anderson,  G  Nat.  Bank.  Reg.  145.  But 
certainly  the  state  courts  arc  not  so  entirely  without  jurisdiction  as  to  render 
their  proceedings  absolutely  void.  If  a  tribunal  lias  no  jurisdiction  over  a 
subject-matter,  it  is  impossible,  even  by  the  consent  of  the  partie.:<  in  interest, 
to  confer  any  validity  on  the  judgments  or  orders  of  such  tribunal.  Freeman 
on  Judgments,  sec.  120.  But  if  the  assignee  of  a  bankrupt  submits  his  rights 
in  regard  to  the  enforcement  of  a  lie  a,  or  the  distribution  of  the  proceed  j  of  a 
sale  to  a  state  court,  he  is  bound  by  its  decision.  Mays  v.  Fritton,  1 1  Nat. 
Bank.  Reg.  229;  20  Wall.  414;  Augustine  v.  McFarland,  13  Nat.  Bank-  Reg. 
7;  Scott  V.  Kelley,  12  Nat.  Bank.  Reg.  96.  Where  a  sale  has  been  made  under 
proceedings  in  a  state  court  to  enforce  a  lien,  and  the  property  brings  itj  value, 
the  bankruj)tcy  court  will  generally  refuse  to  interfere,  for  the  reason  that  no 
advantage  could  accrue  to  tlie  creditors  of  the  bankrupt  from  such  interference. 
In  ro  llufnagoi,  12  Nat.  Bank.  Reg.  556;  In  ro  Iron  Mountain  Co.,  4  Nat. 
Bank.  Rog.  645;  In  ro  Fuller,  4  Bank.  Reg.  (quarto)  29;  1  Saw.  423;  In  re  Bowie, 
1  Nat.  Bank.  Rug.  628;  In  re  Lambert,  2  Nat.  Bank.  Reg.  426;  Lee  v.  German 
Association,  3  Nat.  Bank.  Reg.  218.  The  right  of  the  tribunal  having  juris- 
diction of  the  bankrupt's  estate  to  compel  the  claimants  of  lions  to  adjudicate 
their  claims  before  it  is  not  seriously  questioned.  Hence  such  claimants  have 
frequently  been  enjoined  from  proceeding  further  in  the  state  courts.  Kero- 
sene Oil  Co.,  3  Nat.  Bank.  Reg.  125;  3  Ben.  35;  G  Blatchf.  521;  In  re  Millory, 
G  Nat.  Bank.  Reg.  22;  Jones  v.  Leach,  1  Nat.  Bank.  Reg.  595;  In  re  Shuey,  6 
Chic.  L.  N.  248;  Witt  v.  Hereth,  8  Chic.  L.  N.  41;  13  Nat.  Bank.  Reg.  106;  In 
re  Lady  Bryan  Mining  Co.,  G  Nat.  Bank.  Reg.  252;  Samson  ?;.  Clark,  G  Nat. 
Bank.  Reg.  403;  In  re  Ilufnagel,  12  Nat.  Bank.  Reg.  556;  In  re  Whipple,  13 
Nat.  Bank.  Reg.  373.  And  sales  made  without  permission  have  either  been 
vacated,  or  the  claimants  who  proceeded  have  been  hekl  responsible  for  the 
value  of  the  property  soM,  regardless  of  the  price  realized.  Davis  ?'.  Ander- 
son, 6  Nat.  Bank.  Reg.  145;  In  re  Rosenberg,  3  Nat.  Bank.  Rog.  130;  Smith 
V.  Kehr,  7  Nat.  Bank.  Reg.  97. 

But  supposing  that  the  lien-holder  chooses  to  rely  upon  his  lien,  and  the 
bankrupt  court  does  not  enjoin  him  from  proceeding,  nor  in  any  other  manner 
bring  him  before  it,  and  undertake  to  adjudicate  upon  his  rights.  May  he,  in 
such  circumstances,  lawfully  proceed  in  the  state  courts  until  the  bankruptcy 
courts  command  him  to  desist  ?  The  cases  which  were  first  cited  in  this  note 
insist  that  all  the  debts  due  from  the  bankrupt  must  be  proved  against  his  es- 
tate, and  that  the  holders  of  liens  cannot  make  them  jiroductive  except  by  pro- 
ceedings either  in  the  bankruptcy  court,  or  having  the  express  sanction  of  that 
court.     The  pretensions  of  these  cases  must  be  very  materially  abated,  if  not 


599  THE  LIEN  OF  EXECUTIONS.  §207 

altogether  denied.  It  is  now  settled  that  if  an  execution  has  been  issued  and 
levied,  the  officer  making  the  levy  may,  notwithstanding  the  subsequent  bank- 
ruptcy of  the  defeudaut,  proceed  to  sell  the  property,  and  that  the  bankruptcy 
courts  will  not,  in  ordinary  circumstances,  interfere  with  his  possession,  nor 
enjoin  his  proceedings.  The  rights  of  the  assignee  are  limited  to  the  proceeds 
of  the  sale  remaining  in  the  hands  of  the  officer  after  the  plaintiff  in  execution 
has  been  satisfied.  In  re  Weamer,  8  Nat.  Bank.  Reg.  527;  Marshall  v.  Knox, 
8  Nat.  Bank.  Reg.  97;  IG  Wall.  551;  In  re  Bernstein,  1  Nat.  Bank.  Reg.  199; 
2  Ben.  44;  Alien  v.  Montgomery,  48  Miss.  101;  Thompson  v.  Moses,  43  Ga. 
38.3;  Jones  r.  Leach,  1  Nat.  Bank.  Reg.  595;  Maris  v.  Duron,  1  Brewst.  428; 
In  re  Wilbur,  3  Nat.  Bank.  Reg.  276;  1  Ben.  527.  It  is  also  too  well  established 
to  admit  of  doubt  that  if  property  has  been  attached  on  mesne  process  more 
than  four  months  prior  to  the  commencement  of  the  proceedings  in  bank- 
ruptcy, the  state  court  may  make  the  attachment  lien  productive  by  ordering 
a  sale  of  the  property.  Doe  v.  Childress,  21  Wall.  642;  Stoddard  v.  Locke,  43 
Vt.  574;  Daggett  v.  Cook,  37  Conn.  341;  Hatch  ^^  Seelj%  13  Nat.  Bank.  Reg. 
380;  Bates  r.  Tappan,  99  Mass.  376;  3  Nat.  Bank.  Reg.  647;  Leigh  ton  v.  Kel- 
sey,  57  ile.  85;  4  Nat.  Bank.  Reg.  471;  BatchelJer  v.  Putnam,  13  Nat.  Bank. 
Reg.  404;  Brandon  M.  Co.  v.  Frazer,  13  Nat.  Bank.  Reg.  365;  Rowe  v.  Page, 
13  Nat.  Bank.  Reg.  3GG;  Bowman  v.  Harding,  56  Me.  559;  4  Nat.  Bank.  Reg. 
20;  Gibson  v.  Green,  45  Miss.  218.  In  Pennsylvania  the  state  courts  are  con- 
sidered competent  to  enforce  liens  by  action.  Keller  v.  Denmead,  68  Pa.  St. 
449;  Biddle's  Appeal,  68  Pa.  St.  13;  9  Nat.  Bank.  Reg.  144.  In  Iowa,  actions 
may  be  brought  to  foreclose  mortgages  if  the  assignee  takes  no  steps  to  re- 
deem, and  the  mortgagor  has  not,  by  the  presentation  of  his  claim,  submitted 
his  lien  to  the  jurisdiction  of  the  court  of  bankruptcy.  McKay  v.  Funk,  37 
Iowa,  6G1;  13  Nat.  Bank.  Reg.  334;  Brown  v.  Gibbons,  37  Iowa,  654;  13  Nat. 
Bank.  Reg.  407.  See  also  Reed  r.  Bullington,  11  Nat.  Bank.  Reg.  408;  Wicks 
V.  Perkins,  13  Nat.  Bank.  Reg.  280.  There  are  some  other  cases  which,  we 
think,  warrant  the  lien-holder  in  proceeding  till  arrested  by  the  direct  action 
of  the  bankruptcy  court.  In  re  Davis,  8  Nat.  Bank.  Reg.  167;  1  Saw.  2G0; 
Davis  V.  R.  R.  Co.,  13  Nat.  Bank.  Reg.  258;  Myer  v.  C.  L.  P.  &  P.  W.,  8  Chic. 
L.  N.  197;  Baum  v.  Stern,  1  Rich.,  N.  S.,  415;  Lenihan  i\  Haman,  6  Chic.  L. 
N.  63;  In  re  Donald.^on,  1  Nat.  Bank.  Reg.  181;  1  L.  T.  B.  5;  7  Am.  Law 
Reg.  213.  But  it  is  said  that  though  a  judgment  is  conceded  to  be  a  valid  lien 
on  real  estate,  no  sale  can  be  matle  under  such  judgment  unless  a  levy  was 
made  before  the  commencement  of  the  proceedings  in  bankruptcy.  Jones  ?'. 
Leach,  1  Nat.  Bank.  Heg.  595;  Pennington  v.  Sale,  1  Nat.  Bank.  Reg.  572; 
Turner  v.  The  Skylark,  6  Chic.  L.  N.  239;  Davis  v.  Anderson,  6  Nat.  Bank 
Reg.  145. 

We  are  unable  to  discover  any  provision  of  the  bankrupt  law  depriving  the 
holder  of  a  judgment  lien  from  making  the  same  productive  by  process  issued 
out  of  the  state  court,  and  confined  to  the  subject  of  the  lien.  The  right  to 
sell  under  a  judgment  lien  has  been  upheld  in  Pennsylvania.  Reeser  v.  John- 
son, 10  Nat.  Bank.  Reg.  467;  76  Pa.  St.  313;  Fehley  v.  Barr,  66  Pa.  St.  196.  Of 
similar  import,  as  we  understand  them,  are  the  decisions  under  the  bankrupt  act 
of  1841.  Russell  v.  Cheatham,  8  Smedes  &  M.  703;  Talbert  v.  Melton,  9  Smodes 
&  M.  27;  Savage  v.  Best,  3  How.   118;  Peck  v.  Jeunesa,  7  How.  612.     The 


§207  THE  LIEN  OF  EXECUTIONS.  600 

supremo  court  of  tho  United  States  haa  always  exhibited  a  tendency  to  modify 
the  prcU'usious  of  tho  subordinate  courts,  when  they  were  seeking  to  unduly 
extend  the  operation  of  the  bankrupt  law.     Tho  recent  decision  in  tho  ease  of 
Eyster  c.  Gafl",  reported  in  8  Chic.  L.  N.  117,  shows  that  a  mortgagor  wlio  has 
procured  a  decree  of  foreclosure  may  proceed  to  sell  the  property  after  tho 
mortgagee  has  been  declared  a  bankrupt.     In  this  case  it  was  shown  that  a. 
suit  to  foreclose  the  mortgage  had  been  instituted  in  18vJ8.     In  May,  1870,  the 
mortgagee  tiled  his  petition  in  bankruptcy.     Thereafter,  in  July  of  tho  same 
yeaa-,  a  decree  of  foreclosure  was  entered,  the  assignee  not  havmg  been  made  a 
party  to  the  suit.     A  sale  was  made  under  this  decree.     The  purchaser,  in  due 
time,  brought  his  action  to  recover  possession  of  tho  property,  and  was  resisted 
on  tho  ground  tliat  the  decree  and  sale  were  void.     The  decree  and  sale  were 
sustained.     Justice  Miller,  delivering  the  opinion  of  tho  court,  said:  "It  is  a 
misUke  to  suppose  that  the  bankrupt  law  avoids,  of  its  own  force,  all  judicial 
liroceeding  in  the  state  or  other  courts  the  instant  one  of  the  parties  is  ad- 
judged a  bankrupt.     There  is  nothing  in  the  act  which  sanctions  such  a  propo- 
sition.    The  court,  in  the  case  before  us,  had  acquired  jurisdiction  of  the 
parties,  and  of  the  subject-matter  of  the  suit.     It  was  competent  to  administer 
full  justice,  and  was  proceeding,  according  to  the  law  which  governed  such  a 
suit,  to  do  so.     It  could  not  take  judicial  notice  of  the  proceedings  in  bank- 
ruptcy in  another  court,  however  seriously  they  might  have  affected  the  rights 
of  parties  to  the  suit  already  pending.     It  was  the  diKi/  of  that  court  to  pro- 
ceed to  a  decree,  as  between  the  parties  before  it,  until,  by  some  proper  plead- 
ings in  the  suit,  it  was  informed  of  the  changed  relations  of  any  of   those 
parties  to  the  subject-matter  of  the  suit.     Having  such  jurisdiction,  and  per- 
formincr  its  duty  as  the  case  stood  in  that  court,  we  are  at  a  loss  to  see  how  its 
decree  can  be  treated  as  void.     It  is  almost  certain  that  if,  at  any  stage  of  the 
proceedings,  before  sale  or  final  confirmation,  the  assignee  had  intervened,  he 
would  have  been  heard  to  assert  any  right  he  had,  or  set  up  any  defense  to  the 
suit.     The  mere  filing  in  the  court  of  a  certificate  of  his  appointment  as  as- 
signee, with  no  plea  or  motion  to  be  made  a  party  or  to  take  part  in  the  case, 
deserved  no  attention  and  received  none.     In  the  absence  of  any  appearance 
by  the  assignee,  the  validity  of  the  decree  can  only  be  impeached  on  tho  prin- 
ciple that  the  adjudication  of  bankruptcy  divested  the  other  court  of  all  juris- 
diction whatever  in  the   foreclosure  suit.     The  opinion  seems  to  have  been 
quite  prevalent   in  many  quarters,  at  one  time,  that   the  moment   a  man  is 
declared  bankrupt,  the  district  court  which  has  so  adjudged  draws  to  itself  by 
that  act,  not  only  all  control  of  the  bankrupt's  property  and  credits,  but  that 
no  one  can  litigate  with  the  assignee  contested  rights  in  any  other  court,  ex- 
cept in  so  far  as  the  circuit  courts  have  concurrent  jurisdiction;  and  that  other 
courts  can  proceed  no  further  in  suits  of  which  they  had,  at  that  time,  full 
cognizance.     And  it  was  a  prevalent  practice  to  bring  any  person  who  con- 
tested  with  the  assignee  any  matter  growing  out  of  disputed  rights  of  property, 
or  of  contracts,  into  the  bankrupt  court,  by  the  service  of  a  rule  to  show  cause 
and  to  dispose  of  their  rights  in  a  summary  way.     This  court  has  steadily  set 
its  face  against  this  view.     The  debtor  of  a  bankrupt,  or  the  man  who  contests 
the  right  to  real  or  personal  property  with  him,  loses  none  of  those  rights  by 
the  bankruptcy  of  hia  adversary.     The  same  courts  remain  open  to  him  in  such 


601 


THE  LIEN  OF  EXECUTIONS.  §207 


contests,  and  the  statute  has  not  divested  those  courts  of  jurisdiction  in  such 
actions.  If  it  has,  for  certain  classes  of  actions,  conferred  a  jurisdiction  for 
the  benefit  of  the  assignee  in  the  circuit  and  district  courts  of  the  United 
States,  it  is  concurrent  with  and  does  not  divest  that  of  the  state  courts. 
These  propositions  are  supported  by  the  following  cases,  decided  in  this  court: 
Smith  V.  Mason,  14  Wall.  419;  Marshall  v.  Knox,  16  V\^all.  501;  Mays  v.  Frit- 
ton,  20  Wall.  414;  Doe  v.  Childress,  21  Wall.  642.  See  also  Bishop  v.  John- 
son,  Woolw.  324." 


I 


I 


OF   rKOri:RTY  exempt  from   execution.  602 

CHAPTER  XIV. 

OF   PROrEKTY   EXEMPT  FROM   EXECUTION. 

FIRST.  — (IKNTUAL    rUINTirLKS   ArPLICAnLE   TO  TllK    EXEMPTION    LAWS. 

§  '208.      E.Kemptioii  laws  ;iro  liberally  coiistruuil. 
§  209.     Exemption  laws  have  no  extraterritorial  force. 
§  '210.     Exemption  laws,  to  what  extent  in  force  in  the  federal  courts. 
«;  '21 1.     Whether  the  benetit  of  tiio  exemption  must  bo  claimed  by  the  defend- 
ant. 
§  212.     Claiming  the  right  of  exemption. 
§  212  a.     Claiming  the  right  of  selection. 
§  213.     Claiming  the  benelit  of  appraisement  and  exemption. 
§  214.     Waiver  of  exemption  rights. 
§  214  a.     Forfeiture  of  exemption  rights. 

§  215.     Consequences  of  oUicers  disregarding  claim  for  exemption. 
§  215  a.     Actions  when  debtor's  claim  for  exemption  is  denied. 
§  215  b.     Measure  of  damages  and  the  right  to  set  off. 
§  216.     Agreements  to  waive  benefit  of  exemption  laws. 
§  217.     Against  what  debts  the  exemption  laws  prevail. 
§  218.     Sale  ami  encumbrance  of  exempt  property  by  its  owner. 
§  219.     Constitutionality  of  exemption  laws  as  against  prior  debts. 


§220, 

§221 
§  222 
§  '223 
§224 
§225, 


SECOND. — OF  THE   PERSONS   ENTITLED  TO   EXEMPTION. 
Exemption  laws  appl}'  to  all  inhabitants. 
Co-tenants  and  copartners. 
Heads  of  families. 
Householders. 

Teamsters  and  agriculturists. 
Persons  exercisin;;  two  or  more  trades. 


THIRD.  —  OF  VARIOUS  CLASSES  OF  EXEMPT   PROPEKTY. 

§  226.     Tools,  what  exempt  as. 

§  226  a.     Implements  and  utensils,  what  exempt  as. 

§  227.     Teams,  what  exempt  as. 

§  228.     Wagons,  what  exempt  as. 

§  2*29.     Horses,  what  exempt  as. 

§  230.     Cows,  what  exempt  as. 

§  2.^1.     Houijehold  furniture,  what  exempt  as. 

§  232.     Wearing  apparel,  what  exempt  as. 

§  2.'i3.     Provisions  for  family  use  and  feed  for  stock. 

§  234.     Wages  and  earnings  of  the  defendant. 

§  234  a.    Pensions. 

§  235.     Proceeds  of  exempt  property. 


603  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §208 

§  236.     Property  exempt  because  essential  to  the  use  of  other  exempt  property. 

§  236  a.     Exemption  of  food,  provisions,  etc. 

§  236  b.     Exemption  of  stock  in  trade. 

§  236  c.     Exemptions  not  confined  to  specific  articles. 

§  237.     Miscellaneous  exemptions. 

§  238.     Continuance  of  exemption  after  death  of  the  owner. 

FIRST.  GENEILU.    PRINCIPLES    APPLICABLE    TO     EXEMPTION 

LAWS. 

§  208.  Exemption  Laws  should  be  Liberally- 
Construed. —  Under  the  common  law  and  the  early 
English  statutes,  the  obligation  of  the  debtor  to  dis- 
charge his  liabilities  was  deemed  to  be  paramount  to 
every  consideration  of  benevolence  and  humanity.  If 
unable  to  satisfy  his  obligations,  he  was  placed  within 
control  of  his  creditors  so  absolutely  that  not  only  his 
property,  but  also  his  person,  could  be  taken  and  held 
under  execution.  The  law  was  as  cruel  as  Shylock. 
Like  him,  it  listened  to  no  appeals  for  mercy,  but  in- 
sisted upon  the  satisfaction  of  the  exact  terms  of  the 
bond.  True,  it  stopped  short  of  the  direct  taking  of 
human  life,  and  the  direct  drawing  of  human  blood; 
but  it  never  hesitated  to  deprive  the  debtor  of  all  lib- 
erty of  person,  and  to  impair  his  health  and  spirits, 
and  shorten  his  life,  by  confinement  within  the  narrow 
limits  and  foul  atmosphere  of  its  ill-kept  prisons.  It 
wa.s  scarcely  less  cruel  to  his  family.  For  while  it  al- 
lowed them  a  scanty  supply  of  wearing  apparel,  it  left 
them  no  home,  no  tools  or  implements  of  husbandry, 
no  food,  and  no  means  of  obtaining  a  subsistence.  It 
punished  the  debtor  for  not  paying  his  debts,  and  by 
so  doing  it  deprived  him  of  all  means  of  payment.  If 
the  creditor  liappened  to  be  either  a  sensible  or  a  mer- 
ciful man,  he  would  not  avail  himself  of  the  means  of 
torture  which  the  law  placed  in  his  hands;  hut  if  he 


§«08     OF  rROPKRTY  EX  KM  IT  FROM  KXKCUTIOX.      G04 

were  oIIktwisi',  tlu'  cituclltioii  of  tlii'  dthtDr  Wiis  bcai-ci  ]y 
loss  unlortiiuate  tlian  that  of  any  convictoil  lolon.  In 
soiuo  respects  it  was  less  fortunate.  V\>v  tin-  latter,  by 
nceeptinL^  tlio  defniite  punisluiieiit  awardeil  to  liim, 
ini;^ht,  in  other  tliaii  eiipital  eases,  regain  liis  lib- 
erty; while  the  iniprisoiuniiit  of  tlie  i'ornier,  unless 
the  aid  d"  rriiMids  oi-  llu'  aceidcnlal  accjuisition  of  for- 
tuho  ona!)leil  liiin  t.>  nuike  paynuMit  of  the  debt,  nli^(llt 
terminate  only  witli  his  life.  The  laws  under  whieh, 
throuyjh  motives  of  humanity  toward  the  debtor  and 
his  family,  a  considerable  portion  of  his  property  is  now 
exempt  from  I'xeeutlon  are  ejiielly,  if  n(»t  exclusively, 
the  result  of  statutes  enacted  in  the  various  states  of 
t!ie  American  Union.  These  statutes  dilier  greatly 
from  one  another  in  the  enumeration  of  j)roperty  ex- 
euspted,  though  they  are  all  animated  by  the  same 
spirit,  and  intended  to  accomplish  the  same  humane 
purposes.  The  practitioner  nmst  necessarily  study  the 
t<ubjeet  of  exemptions  mainly  by  the  aid  of  the  statutes 
of  his  own  state.  The  most  that  cau  be  accomplished 
in  a  text-book  is  to  call  attention  to  those  principles 
■vvhieh  are  of  general  application,  and  to  give  such  in- 
terpretation, as  can  be  found  in  the  reports,  of  the 
various  terms  and  phases  contained  in  the  different 
statutes.  It  is  of  primary  importance  that  tiie  practi- 
tioner should  understand  the  spirit  in  wliieli  the  stat- 
ute of  his  state  will  be  received  and  construed  by  its 
courts.  While  it  is  true  that  lands  were  not  sub- 
ject to  execution  at  the  common  law,  their  exemption 
was  dictated  by  other  considerations  than  those  of 
benevolence  to  the  debtor  and  his  family.  That  tliero 
should  be  property  which  in  its  nature  was  generally 
sul)ject  to  execution,  but  which  was  exempt  for  certain 


605  OF  PROPERTY  EXEMPT  FROM   EXECUTION.  §208 

persons  or  in  certain  cases,  to  mitigate  the  misfor- 
tunes of  debtors,  was  unknown  to  the  common  law. 
Statutes  of  exemption,  whether  referring  to  real  or  per- 
sonal property,  may  therefore  properly  be  characterized 
as  in  deroL^ation  of  the  common  law/  and  if  there  were 
a  universal  rule  that  statutes  in  derogation  of  the  com- 
mon law  must  be  strictly  construed,  then  such  a  con- 
struction of  statutes  of  exemption  would  be  unavoidable. 
This  construction  has  in  fact  been  proclaimed  in  some 
instances.-  Where  this  rule  prevails,  no  property  can 
be  successfully  claimed  as  exempt  which  does  not 
clearly  appear  to  be  embraced  within  the  specification 
contained  in  the  statute.  But  in  most  of  the  states  it 
does  not  prevail,  nor  can  it  be  permitted  to  prevail  any- 
where without  forgetting  that  the  ''quality  of  mercy  is 
not  strained."  We  can  hardly  conceive  the  propriety 
of  strictly  construing  a  statute  of  mercy  or  benevolence. 
Unless  its  validity  can  be  wholly  denied  because  of  the 
want  of  legislative  power  to  enact  it,  it  should  be  given 
full  effect  by  interpreting  it  in  the  spirit  in  which  it  was 
conceived  and  adopted,  and  with  a  view  of  accomplish- 
ing all  its  manifest  objects.  It  is  true  that  exemption 
laws  are  occasionally  p<,Tverted  from  their  laudable 
purposes.  They  sometimes  enable  debtors  in  comfort- 
able circumstaccs  to  bid  defiance  to  creditors  more 
improvished  than  themselves.  They  sometimes  assisr, 
scoundrels  to  consunmiate  the  most  cruel  frauds.  ]^ut 
in  the  vast  majority  of  cases  their  operation  is  highly 
meritorious.     Tliey  often  assure  to  tlie  family  the  slicl- 

•  Garaty  r.  I)u  liose,  5  S.  C.  500;  Briant  v.  Lyons,  29  La.  Ann.  G5;  To.M 
r.  Cionly,  '28  La.  Ann.  000. 

'Guillory  »•.  L>e\-ilIo,  I'l  Lv  Ann.  CSfi;  Crilly  v.  ShcriflT.  'J.j  I>a.  Ann.  21!); 
Grimu-s  r.  Bryne,  2  Minn.  lO.i;  Teinplo  v.  Scott,  3  Minn.  419;  Rue  r.  Altir,  5 
Dtnio,  119;  Wardr.  }Iubn,  IG  Minn.  159. 


§2JS  OV   TROrERTY    EXEMPT  FROM   EXECUTION.  60G 

tor  of  a  home,  the  means  of  ohtainiiiL;  a  livi-hhootl,  and 
the  earuinj^s  of  its  natural  head  and  |)roteetor.  Th(y 
niitiq;ate  the  Iwiryhness  of  tlie  criirl  and  <:>"raypin<^  credi- 
tor, and  <j;ive  to  l!ie  most  ir.dortunate  of  debtors  a 
jdaee  of  refuse  andayleam  of  ho[)c.  J^eeause  of  their 
meritorious  purposes  and  tlicir  remedial  character,  the 
courts  have  ^^enerally  treated  tliem  with  ilie  utmost 
consideraticiu,  and  have  been  inclined  to  extend  rather 
than  to  restrict  their  operation.  Plencc  the  rule  is 
well  supported,  and  is  constantly  growing  in  favor,  that 
exemption  laws,  being  remedial,  beneficial,  and  hu- 
mane in  their  character,  must  be  liberally  construed.^ 
"Wherever  this  rule  prevails,  and  it  does  not  clearl}'  ap- 
pear whether  certain  property  is  or  is  not  embraccvl 
within  tlie  exempting  statute,  the  debtor  will  generally 
be  allowed  the  benefit  of  the  doubt,  and  suffered  to  re- 
tain the  property.  Doubtless  the  courts  will  always 
distinguish  between  enacting  and  construing,  and  not 
undertake  to  supply  omissions  made  by  the  legislature. 
This  will  not  bind  them  to  a  literal  interpretation,  nor 
prevent  them  fn>m  realizing  objects  clearly  within  the 

1  AUuian  v.  Gaiin,  29  Ala.  240;  Favers  v.  Glass,  22  Ala.  G21;  C8  Am.  Dec. 
272;  Sallee  v.  Waters,  17  Ala.  4S2;  NolaucU-.  Wickhaui,  U  Ala.  IG!);  Wasscdl 
r.  Turinah,  25  Ark.  101;  Montague  v.  Richardson,  24  Conn.  34G;  G3  Am.  Doc. 
173;  Good  V.  Fogg,  Gl  111.  44'J;  Deere  ?•.  Chapman,  2.j  III.  GIO;  Bevah  v.  Hay- 
djii,  13  Iowa,  122;  Kiuyour.  Baker,  IG  M:cii.  373;  King  v.  Moore,  10  Mich. 
53S;  Wade  v.  Jones,  20  Mo.  75;  Megehe  v.  Draper,  21  Mo.  510;  Carpenter  v. 
lit-rringtoa,  25  Wend.  370;  37  Am.  Dec.  239;  Stewart  v.  Brown,  .37  N.  Y.  350; 
Alvord  V.  Lent,  23  Mich.  3G9;  Ford  v.  Johnson,  34  Barh.  3G4;  Becker  v. 
Be.ker,  47  Bar!).  497;  Tillotson  v.  Wolcott,  48  N.  Y.  188;  Bu.xton  v.  Dearhorn, 
4G  N.  H.  44;  Richardson  v.  Duncan,  2  Heisk.  220;  Webh  i\  Brandon,  4  Heiak. 
2S5;  Hawthorne  r.  Smith,  3  Nev.  182;  Cobhs  v.  Coleman,  14  Tei".  .'■)94;  Ander- 
son r.  McKay,  .30  Tex.  190;  Rogers  v.  Ferguson,  32  Tex.  5;«;  Oilman  v.  Wal- 
Ham-,  7  Wis.  329;  Connaughton  r.  Sands,  32  Wi.s.  387:  Kuntz  v.  Kinney,  33 
"Wi.;.  510;  Webster  v.  Orne,  45  Vt.  40;  In  re  Jones,  2  Dill.  343;  Stewart  v. 
Brown,  37  N.  Y.  .3.">0;  .Siiaw  r.  Davis,  55  Barl).  .389;  Vogler  v.  .M..ntg..mery,  54 
Mo.  577;  Carrington  r.  Ilerrin,  4  Bush,  G24;  Puett  v.  Beard;  8G  Ind.  172;  44 
Am.  Rep.  208;  Butner  v.  BoWser,  104  Ind.  255. 


I 


I 


607  OF  PROPERTY  EXEMPT  FROM   EXECUTION.  §209 

purpose  of  the  act,  though  not  literally  within  its  terms. 
Thus  though  a  statute  exempted  a  yoke  of  oxen,  or  a 
COW,  or  team  of  horses,  the  courts  will  not  construe 
these  terms  so  literally  as  to  deny  the  exemption  of  a 
steer,  heifer,  or  unbroken  colt,  of  which  the  debtor  has 
become  possessed  in  his  efforts  to  obtain  a  yoke  of 
oxen,  a  cow,  or  a  horse,  as  the  case  may  be;^  for  the 
purpose  to  exempt  these  under  the  circumstances  is 
suiiiciently  manifest,  though  the  literal  words  of  ex- 
emption are  not  co-extensive  with  the  signification 
given  to  them. 

§  209.    Exemption  Laws  are  Part  of  the  Lex  Fori.  — 

The  operation  of  exemption  laws  is  restricted  to  the  state 
in  which  they  are  enacted.  They  do  not  constitute  a 
part  of  the  contract  between  the  debtor  and  creditor, 
to  the  extent  that  the' former  may  invoke  them  where- 
ever  he  may  choose  to  go.  Hence  if  a  man  to  whom 
a  debt  was  due  for  personal  services  in  Pennsylvania 
should  remove  to  another  state,  in  which  such  a  debt 
was  subject  to  execution,  he  could  not  protect  it  from 
garnishment  by  showing  its  exemption  in  the  state 
where  it  was  earned  and  whence  he  had  removed."^  So 
a  resident  of  one  state,  having  property  in  another, 
cannot  hold  it  as  exempt  by  virtue  of  the  exemption 
laws  of  the  state  of  his  domicile.^     Statutes  of  exemp- 

*  Mallory  v.  Berry,  IG  Kan.  293.  Perhaps  in  some  instances,  in  the  inter- 
ests of  impocunious  humanity,  the  judges  have  gone  beyond  the  bounds  where 
interjjretation  ends  and  legishition  begins.  The  cases  tending  in  this  direction, 
and  cited  and  soiiiewliat  humorously  commented  upon  in  a  note  to  Rockwell  v. 
Hubbell's  Adm'rs,  4.1  Am.  Dec.  253. 

'  Morgan  v.  Neville,  74  Pa.  St.  .52. 

*  lioykin  r.  Edwards,  21  Ala.  201.  The  case  of  Pierce  v.  C.  &  N.  W.  R.  R. 
Co.,  30  Wis.  283,  2  Cent.  L.  J.  377,  niJiy  somewhat  conflict  with  the  views 
expressed  in  tliis  section.  That  case  is,  however,  very  severely  criticised  (.see 
2  Cent.  L.  J.  374,  ',i~H,  447),  and  so  far  as  it  gives  countenance  to  the  theory 


§•209  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  COS 

t'uMi  aiv  regarded  as  ivlatiuL;- to  or  afiecting  the  remedy, 
as  eonstitutiiiij^  part  of  the  hx  fori  only.  When  an 
action  is  broui^lit  in  a  state,  its  exenq^tion  laws  must  bo 
accepted  as  an  unavoidable  incident  of  the  remedy  con- 
ceded by  its  courts.  The  contract  may  have  been  made 
in  another  state,  where  the  exemption  laws  are  either 
more  illiberal  to  the  debtor,  or  deny  him  all  exemption 
as  against  this  particular  cause  of  action.  This  immu- 
nity from  exemption  laws  does  not  attend  the  contract; 
and  when  sought  to  be  enforced  in  another  state,  sat- 
isfaction of  the  judgment  thereon  obtained  cannot  be 
had  in  violation  of  the  exemption  laws  of  the  latter 
state. ^  Statutes  of  exemption  being  generally  conceded 
to  be  a  part  of  the  lex  fori,  the  question  arises  whether 
the}'  do  not  necessarily  extend  to  the  protection  of  all 
persons  who  are  sued  or  pursued  within  the  state, 
unless  their  provisions  are  explicitly,  or  by  necessary 
implication  restricted  to  residents  or  to  some  other 
designated  class  of  pers(ms.  With  natural  partiality 
toward  their  fellow-citizens,  the  courts  of  some  of  the 
states  have  construed  their  exemption  laws  as  operative 
onl}^  in  behalf  of  residents.  Thus  where  the  defendant 
had  absconded  from  the  state,  the  court  said:  "In  case 
a  debtor  abscond  from  the  state  with  the  purpose  of 
avoiding  the  service  of  process  and  all  responsibility  to 
its  laws,  and  of  placing  himself  permanently  beyond 
their  reach  and  iniluence,  he  must  be  regarded  as  vol- 

tliat  a  contract  may  be  enforced  according  to  the  lex  lori  rather  than  the  lex  fori, 
the  case  is  utterly  indefensible.  Newell  v.  Haydon,  8  Iowa,  140;  Wood1)ridgo 
V.  Wright,  .3  Conn.  523;  Atwater  v.  Townsend,  4  Conn.  47;  Toonier  v.  Dicker- 
son,  37  Ga.  428;  Coffin  v.  Coffin,  IG  Pick.  323;  Wood  v.  Malin,  5  Halst.  208; 
Whittemore  v.  Atlams,  2  Cow.  G2G;  White  v.  Canfield,  7  Johns.  117;  5  Am. 
Dec.  249;  Smith  t\  Atwood,  3  McLean,  545;  Hinkley  v.  Mareau,  3  Mason,  88; 
IlaakiU  V.  Andros,  4  Vt.  609;  24  Am,  Dec.  G45. 
'  Helfenstcin  v.  Cave,  3  Iowa,  287. 


609  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §209 

untarily  abandoning  all  claim  to  participate  in  any  of 
the  personal  benefits  and  privileges  conferred  by  such 
laws  upon  those  remaining  subject  to  their  jurisdiction. 
In  the  language  of  Woodward,  J.,  in  Yelverton  i'.  Bur 
ton,  26  Pa.  St.  351,  'if  he  will  not  come  within  our 
jurisdiction  to  answer  to  his  liabilities,  let  him  not 
come  to  appropriate  our  bounties.'  It  cannot,  there 
fore,  be  presumed  that  the  legislature  intended  to 
extend  the  benefits  of  the  exemption  law^s  to  this 
class  of  persons."^  States  are  not  accustomed  to  give 
exemptions  from  the  laws  for  the  collection  of  debts 
for  the  benefit  of  persons  resident  in  other  juris- 
dictions. The  exemptions  are  personal  privileges,  de- 
pendent on  personal  or  family  circumstances;  and  if 
one  who  possesses  them  removes  to  a  foreign  state, 
whereby  he  would  acquire  under  its  laws  privileges, 
more  or  less  liberal,  not  possessed  by  our  own  people, 
he  thereby  abandons  those  he  possessed  before,  so  far 
as  they  were  local  in  their  nature.  And  if  exemption 
privileges  are  not  necessarily  local,  they  are  certainly 
in  their  reasons.  They  are  conferred  on  grounds  of 
state  policy,  to  add  to  the  comfort  and  encourage  the 
industry  of  the  people;  and  every  state  will  make  such 
regulations  on  the  subject  as  its  own  people  will  deem 
wisest  and  best."  In  other  states  the  application  of 
exemption  laws  to  non-residents,  whether  temporarily 
within  the  state  or  absent  therefrom,  is  denied  by  stat- 
ute.^ In  one  of  these  states  it  has  been  held  that  where 
the  defendant  resided  within  the  state,  and  was  entitled 

>  Orr  V.  Box,  '22  Minn.  485. 

'^  McHugh  V.  Curtid,  48  Mich.  262;  Liscnbee  r.  Holt,  1  Suceil,  42;  Hawkins 
r.  Pearce,  11  Huinpii.  44;  Finlcy  v.  Sly,  44  Ind.  266;  Yclvcrtou  v.  Burton,  26 
Pa.  St.  351. 

*  Graw  ?'.  Manning,  54  Iowa,  719;  Allen  v.  Mauassc,  4  Ala.  554. 
Vol.  I. -39 


S '.>>9  OK    rUOlM'-KlY    KXKMIT    I'KOM    KXKlT  llON.  610 

t.)  extMnptioii  at  tin*  tiinr  lu'  claimed  it,  Midi  demand 
oonsummateil  his  li'^lit ,  and  his  sulisecjueiit  removal  from 
tlu'  state  was  immateiial.'  That  the  tiltject  of  the 
K'Ljislatnn^  in  rnactii^j;  (.'Xemption  laws  was  solely  to 
In-nelit  or  piotoct  tho  citizens  of  the  state  will,  if  rc- 
i^ai'iled  as  a  ([iieNlion  ol'  fact,  admit  of  no  serious  con- 
truversv,  for  the  view  of  the  average  lej^islator  is  rarely 
siitHeiently  eonjpndiensive  to  embrace  the  citizens  of  a 
si-iter  state  or  of  foi-ei^jfii  nations.  It  is  equally  heyond 
controverNV  that  this  limited  ohject  is  not  apparent  in 
manv  of  the  statutes,  and  exist-;  oidy  as  tlu'  result  of 
juilicial  interpolation.  This  inter[H)lation  will  not  be 
made  in  several  of  the  states,  and  the  reasons  for  not 
inakin;4  it  have  l)een  thus  forcibly  stated:  "Whatever 
remedy  oui'  laws  L;ive  to  enforce  the  performance  of  a 
cfintract  will  eciually  avail  the  citizen  or  the  forei<^ncr; 
and  they  eijually  nmst  be  subject  to  any  restraints  which 
the  law  imposes  upon  them.  Our  inhabitants  can  have 
no  greater  rights  in  enforcing  a  claim  against  a  for- 
ei<nier  than  an  alien  can  have  in  enforcing  a  similar 
claim  ajjainst  one  of  our  own  citizens.  Whoever  sub- 
mits  himself  or  his  property  to  our  jurisdiction  must 
yield  to  all  the  requirements  which  are  made  of  our 
citizens  in  relation  to  the  collecting  of  debts,  or  main- 
taining suits;  and  is  clearly  entitled  to  all  the  benefits, 
exemptions,  and  privileges  to  which  other  debtors  or 
suitors  belonging  to  our  own  state  are  subject  or  en- 
titled. If  the  one  can  hold  a  cow,  suitable  wearing 
apparel,  and  necessary  household  furniture,  without 
having  the  same  taken  from  him  by  execution,  so  can 
the  other.  Nothing  short  of  the  express  language  of 
a  statute   would  justify   us   in   saying  that  a   persou 

'  McCrary  v.  Cha*e,  7 1  Al^.  540. 


611  OF  PROPERTY   EXEMPT  FROM  EXECUTION.  §209 

may,  b}"  virtue  of  an  execution,  be  stripped  of  his  wear- 
ing apparel,  his  necessary  household  furniture,  and  his 
only  cow,  merely  because   lie  resides  under  another 
government,  when  a  person  residing  here  would  not  be 
subject  to  the  same  inconvenience  and  distress."^     "The 
statute  makes  no   discrimination    between  temporar}'' 
and  permanent  residents,  nor  does  it  purport  to  confine 
its  privileges  to  residents  at  all.     It  exempts  certain 
articles  of  the  debtor  and  his  family.     And  we  think 
it  would  be  entirely  inconsistent  with  the  beneficent 
intentions  of  the  statute  as  well  as  with  the  dignity  of 
a  sovereign  state,  to  say  that  the  temporary  sojourner, 
or  even  the  stranger  within  our  gates,  was  not  entitled 
to  its  protection.'""     The  courts  will  interfere  to  protect 
their  citizens  in  their  rights  of  exemption,  when  sought 
to  be  evaded  by  recourse  to  proceedings  in  other  states. 
The  wages  of  an  employee  may  be  exempt  by  the  laws 
of  the  state  in  which  he  lives  and  in  which  they  are 
earned ;  but  his  creditor,  to  avoid  such  exemption,  may 
commence  an  action  against   him  in  another  state  in 
which  they  are   not  exempt,  and  seek  to  levy  upon 
them  under  attachment  or  execution.     If  the  creditor 
is  a  citizen  of  the  state  in  which  the  debtor  lives,  the 
courts  of  such  state  will  protect  the  debtor's  right  of 
exemption  by  enjoining  the  creditor  from  proceeding  in 
the  other  state.^     As  tlic  court  has  jurisdiction  over 
both  parties,  there  is  no  doubt  of  its  power  to  prevent 

>  HaDkill  V.  AndrosH,  4  Vt.  OOO;  'J4  Am.  Dec.  G45. 

»  I»wo  V.  Stririgham,  14  Wis.  2*J5;  Hill  r.  Looiiiis,  G  N.  II.  2G3;  Mineral 
Point  K.  K.  Co.  r.  lUrroii.  s;{  111.  .%.">;  Wriglit  v.  C.  B.  k  Q.  R.  II.,  10  Nel>. 
17.'>;  Mcnzie  r.  Kelly,  8  111.  Ai.i>.  l'.")0;  Mo.  V.  R'y.  v.  Malthy,  34  Kan.  12.'); 
KaDsaii  C,  St.  J.  &  C.  B.  R'y  r.  Gough,  35  Kan.  1;  Sproul  v.  McCoy,  2(J  Ohio 
8t.  577. 

»  Snook  V.  Snetzer,  25  Ohio  St.  51G;  Kcyscr  v.  Rico,  47  Md.  203;  Tcayer  r. 
Laodsley,  09  Iowa,  725;  Mumper  r.  Wilson,  72  Iowa,  1G3. 


§•210  OF   PROPERTY  EXEMPT   FROM  EXECUTION.  612 

the   creditor   iVom   proceeding,   if  the   case   presented 
a*"»"ainst  him  is  a  proper  one  in  which  to  exercise  such 
pi)\vi'r.      Upon  this  subject  the  authorities  seem  to  uni- 
tbrnily  atlirni  tliat  courts  of  ecjuity  will,  if  necessary, 
compel  persons  within  their  jurisdiction  to  obey  and 
respect  the  laws  of  the  state,  and  will  not  suffer  them 
to  evade  those  laws,  and  thereby  obtain  preferences,  to 
the  injury  of  the  debtor  or  of  other  creditors.^     This 
rule  has  been  extended  in  Iowa  to  protect  from  execu- 
tion in  Nebraska  a  team  which  had  been  taken  to  the 
latter  state  by  a  resident  of  Iowa,  for  a  temporary  pur- 
pose.    "  Residents  of  one  state,  in  the  prosecution  of 
their  ordinary  business,  often  lind  it  necessary  to  take 
exempted  property,  for  temporary  use,  in  earning  sup- 
port for  their  families,  into  adjt)ining  states.     It  would 
be  unjust,  oppressive,  and  absurd  to  permit  creditors  to 
follow  such  persons  and  seize  their  property,  exempt 
from  their  debts,  the   moment  they  had  passed   the 
boundary  line  of  the  state." '^ 

^  210.  Exemption  from  Executions  from  Federal 
Courts. — A  party  recovering  judgment  in  any  com- 
mon-law cause  in  any  circuit  or  district  court  of  the 
United  States,  according  to  the  present  statutory  pro- 
visions ^overninG:  this  matter,  "shall  bo  entitled  to  sim- 
ilar  remedies  upon  the  same,  by  execution  or  otherwise, 
to  reach  the  property  of  the  judgment  debtor,  as  are 
provided  in  like  cause  by  the  laws  of  the  state  in  which 
such  court  is  held,  or  by  any  such  laws  hereafter  en- 
acted which  may  be  adopted  by  general  rules  of  such 
circuit  or  district  court;  and  such  courts  may  from 
time  to  time,  by  general  rules,  adopt  such  state  laws 

>  Sec  authorities  last  cited,  and  Mcintosh  v.  Ogilvie,  4  Term  Rep.  193. 
*  Mumper  v.  Wilson,  72  Iowa,  163. 


613  OF  PROPERTY  EXEMPT  FROM  EXECUTIOX.  §210 

as  may  hereafter  be  in  force  in  such  state  in  relation 
to  remedies  upon  judgments  as  aforesaid,  by  execution 
or  otherwise."^     It  follows  from  thi^  provision,  that 
property  exempt  from   process  issued  out  of  a  state 
court  may  not  be  exempt  from  process  issued  out  of 
a  court  of  the  United  States.     The  state  exemption 
laws  cannot  be  enforced  against  creditors  having  judg- 
ments in  the  federal  courts,  except  where  those  laws 
have   been  adopted   by   virtue   of  the  statute  quoted 
above,  or  of  general  rules   prescribed  by  the  federal 
courts  in  the  exercise  of  authority  conferred  by  that 
statute.^     To    determine  what  property  may  be    suc- 
cessfully claimed  as  exempt  as  against  a  writ  issued 
from  a  district  or  circuit  court  of  the  United  States, 
we  must  first  examine  the  exemption  laws  in  force  in 
the  state  wherein  such  court  was  held  at  the  date  of 
the  passage  of  the  statute  just  referred  to,  and  must 
next  ascertain  what  subsequent  state  statutes  have  been 
adopted  by  the  court  issuing  the  writ.^    As  against  pro- 
ceedings under  the  late  bankrupt  act  of  the  United 
States,    the    following    exemptions    prevailed:     "The 
necessary  household  and  kitchen  furniture,  and  such 
other  articles  and  necessaries  of  the  bankrupt  as  the 
assignee   shall  designate  and  set  apart,  having  refer- 
ence in  the  amount  to  the  family,  condition,  and  cir- 
cumstances  of  the   bankrupt,  but   altogether   not   to 
exceed  in  value  in  any  case  the  sum  of  five  hundred 
dollars;  and  also  the  wearing  apparel  of  such  bankrupt, 

1  Desty's  Fe«leral  Procedure,  sec.  916;  17  U.  S.  Stats.  197. 

»  Rogers  v.  McKenzie,  1  Heisk.  514;  United  States  Bank  v.  Halstead,  10 
Wheat.  51;  Lawronce  v.  Wickware,  4  McLean,  96. 

3  With  respect  to  the  linal  process  of  the  federal  courts  and  its  freedom  from 
state  control,  sec  Wayn.an  v.  Southard,  10  Wheat.  1;  Boyle  v.  Zacharie.  6  Pet. 
648;  Beers  r.  Ilaughtoii,  9  Pet.  431;  Ross  r.  Duval,  13  Pet.  45;  United  States 
r.  Knight,  14  Pet.  301;  Amis  v.  Smith,  IG  Pet.  303;  Massiugall  v.  Downa,  7 
How.  TOO. 


§C10  OF   rilOPERTY   EXEMPT  FROM   EXECUTION.  G14 

ami  that  of  his  wiCo  aiul  c-liildrvn;  aiul  tlio  uniform, 
arms,  aiul  0(]uipmoiits  of  any  person  wlio  is  or  has 
boon  a  soldier  in  the  militia  or  in  the  S(n'vi('e  of  the 
United  States;  and  such  other  property  as  now  is  or 
hereafter  shall  be  exempted  from  attachment,  or  seiz- 
ure, or  levy  in  execution  by  the  laws  of  the  United 
States,  and  such  other  property  not  included  in  tlie 
foregoing  exemptions  as  is  exempted  from  lev}''  and 
sale  upon  execution  or  other  process  or  order  of  any 
court  b}'  the  laws  of  the  state  in  which  the  bankrupt 
has  his  domicile  at  the  time  of  the  commencement  of 
the  proceedings  in  bankruptcy,  to  an  amount  not  ex- 
ceeding that  allowed  by  such  state  exemption  laws  in 
force  in  the  year  1871."^ 

This  portion  of  the  statute,  so  far  as  it  adopted  the 
state  exemption  laws,  was  objected  to  as  unconstitu- 
tional, because  it  is  not  uniform  in  its  operation.  This 
objection  was  never  sustained.^  But  by  an  amend- 
ment, enacted  in  1873,  it  was  provided  that  the  exemp- 
tions "shall  be  the  amount  allowed  by  the  constitution 
and  law  of  each  state  respectively,  as  existing  in  the 
year  1871;  and  that  such  exemptions  be  valid  against 
debts  contracted  before  the  adoption  and  passage  of 
such  state  constitutions  and  laws,  as  well  as  those  con- 
tracted after  the  same,  and  against  liens  by  judgment 
or  decree  of  any  state  court,  any  decision  of  any  such 
court  rendered  since  the  adoption  and  passage  of  such 
constitution  and  laws  to  the  contrary  notwithstand- 
ing."^    This  amendment  was  an  attempted  adoption  of 

»  See  section  14  of  act  of  18G7;  sec.  5045,  R.  S.  U.  S. 

2  lu  re  Beckerford,  1  Dill.  45;  2  Nat.  Bank.  Reg.  203;  In  re  Wylie,  5  L.  T. 
B.  330;  In  re  Deckert,  10  Nat.  Bank.  Reg.  1;  Am.  L.  T.,  N.  S.,  330;  9  Alb.  L. 
J.  330;  G  Chic.  L.  N.  310. 

^  17  U.  S.  Stat.  577. 


L 


615  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §210 

state  laws  which  had  been,  or  were  likely  to  be,  de- 
clared invalid  by  the  state  tribunals,  because  they 
impaired  the  obligation  of  contracts.  It  was  frequently 
attacked  on  the  ground  that  it  did  not,  like  the  former 
law,  adopt  the  state  statutes;  but,  in  effect,  prescribed 
a  direct  law  upon  the  subject;  that  the  law  so  pre- 
scribed could  not  be  uniform  in  its  operation,  and  was 
therefore  not  authorized  by  the  constitution  when 
it  granted  congress  the  power  to  enact  bankrupt  laws 
which  should  be  uniform  in  their  operation.  The  consti- 
tutionality of  the  amendment  was  frequently  sustained.^ 
But  the  more  recent  decisions  supported  a  different 
conclusion,  and  indicated  that  the  amendment  will  ulti- 
mately be  declared  unconstitutional.'^  The  title  to  the 
property  exempted  by  the  bankrupt  act  did  not  vesb 
in  the  assignee,  but  remained  in  the  bankrupt.^  The 
bankrupt  was  entitled  to  the  state  exemption,  in  addi- 
tion to  the  amount  specified  in  the  act.*  The  amount 
of  property  to  be  retained  by  the  bankrupt  by  virtue 
of  the  state  exemption  laws  could  not  exceed  that 
allowed  in  the  year  1871;^  under  the  laws  of  the  state 
or  territory^  in  which  he  had  his  domicile  at  the  time 
the  proceedings  in  bankruptcy  were  instituted,'     The 

1  In  re  Jordan,  8  Nat.  Bank.  Reg.  180;  In  re  Keau  and  White,  8  Nat.  Bank. 
Reg.  3G7;  In  re  W.  A.  Jordan,  10  Nat.  Bank.  Reg.  427;  In  re  Owens,  12  Nat. 
Bank.  Reg.  518;  In  re  J.  W.  Smith,  8  Nat.  Bank.  Reg.  401;  6  Chic.  L.  N.  33. 

2  In  re  Deckert.  10  Nat.  Bank.  Reg.  1;  Am.  L.  T.,  N.  S.,  23G;  9  Alb.  L.  J. 
330;  Chic.  L.  N.  310;  In  re  Kerr  and  Roach,  9  Nat.  Bank.  Reg.  56G;  In  re  Duer- 
8on,  13  Nat.  Bank.  Reg.  183;  In  re  Dillard,  9  Nat.  Bank.  Reg.  8;  6  L.  T.  B. 
490. 

3  In  re  Lambert,  2  Nat.  Bank.  Reg.  426;  In  re  Hester,  5  Nat.  Bank.  Reg. 
285;  Rix  v.  Cajjitol  Bank,  2  Dill.  367. 

*  In  re  Ruth,  1  Nat.  Bank.  Reg.  154;  7  Am.  Law  Reg.  157;  In  re  Cubl),  1 
Nat.  Bank.  Reg.  414;  1  L.  T.  B.  59;  In  re  Hezekiali,  11  Nat.  Bank.  Reg.  573;  2 
Dili.  551. 

*  In  re  Askew,  3  Nat.  Bank.  Reg.  575. 

"  In  re  McKcrcher  and  Pettigrew,  8  Nat.  Bank.  Reg.  409. 
'  In  re  Steven.s,  5  Nat.  Bank.  Reg.  298;  2  Bias.  373. 


§'J10  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  616 

property  set  aside  to  the  bankrupt  as  exempt  remained 
subject  to  all  valid  liens,  other  than  those  attachment 
liens  whirh  are  dissolved  by  virtue  of  the  proceedings 
in  bankruptcy.^  To  be  entitled  to  an  exemption  as  a 
householder  or  head  of  a  family,  it  was  not  indispensable 
that  the  bankrupt  should  have  cither  a  wife  or  chil- 
dren. It  was  sufficient  that  he  kept  house,  and  had 
persons  living  with  him,  and  dependent  upon  him  for 
support.-  Nor  could  the  bankrupt's  right  of  exemp- 
tion be  diminished  on  account  of  his  having  a  wife  who 
owned  a  house  or  other  separate  property.^  Exemp- 
tion was  frequently  allowed  to  the  bankrupt  from 
the  property  of  a  partnership  of  which  he  was  a  mem- 
ber;* but  probably  this  cannot  be  permitted,  as  against 
the  rights  of  the  creditors  of  the  firm,  unless  expressly 
sanctioned  by  the  state  laws.^  Most  of  the  exemptions 
allowed  by  the  bankrupt  act,  independent  of  the  state 
exemptions,  are  so  specifically  stated  in  the  act  as  to  be 
free  from  doubt,  and  from  the  need  of  judicial  interpreta- 
tion.    The  only  questions  liable  to  controversy  are:  1. 

1  In  re  Perdue,  1  Nat.  Bank.  Reg.  18.3;  2  West.  Jur.  279;  In  re  WTiitehead, 
2  Nat.  Bank.  Reg.  599;  In  re  Brown,  3  Nat.  Bank.  Beg.  250;  2L.  T.  B.  122;  1 
Chic.  L.  N.  409;  Fehley  v.  Barr,  66  Pa.  St.  196;  In  re  Hutto,  3  Nat.  Bank. 
Reg.  781;  1  L.  T.  B.  226;  3  L.  T.  B.  179;  In  re  Coons,  5  Chic.  L.  N.  515;  Ha- 
worth  V.  Travis,  13  Nat.  Bank.  Reg.  145. 

••'  In  re  Taylor,  3  Nat.  Bank.  Reg.  158;  In  re  Ruth,  1  Nat.  Bank.  Reg.  154; 
In  re  Cobb,  1  Nat.  Bank.  Reg.  414;  1  L.  T.  B.  59. 

3  In  re  Cobb,  1  Nat.  Bank.  Reg.  414;  1  L.  T.  B.  59;  In  re  Tonne,  13  Nat. 
Bank.  Rep.  171. 

♦  In  re  Rupp,  4  Nat.  Bank.  Reg.  95;  2  L.  T.  B.  123;  In  re  Young,  3  Nat. 
Bank.  Reg.  440;  McKercher  and  Pettigrew,  8  Nat.  Bank.  Reg.  409;  In  re  Rich- 
ardson &  Co.  11  Nat.  Bank.  Reg.  114;  7  Chic.  L.  N.  62;  In  re  Ralph,  4  Nat. 
Bank.  Reg.  95;  2  L.  T.  B.  123;  Stewart  v.  Brown,  37  N.  Y.  350. 

*  In  re  Price,  6  Nat.  Bank.  Rep.  400;  In  re  Handlin  &  Vemy,  J2  Nat.  Bank. 
Reg.  49;  2  Cent.  L.  J.  264;  Burns  v.  Harris,  67  N.  C.  140:  In  re  Blodgctt  & 
Sanford,  10  Nat.  Bank.  Reg.  145;  In  re  Steuart  and  Newton,  13  Nat.  Bank. 
Reg.  295;  In  re  Hafer,  1  Nat.  Bank.  Reg.  547;  Anonymous,  1  Bank.  Reg. 
(quarto)  187;  Pond  v.  Kimball,  101  Mass.  105;  Guptil  v.  ]\IcFee,  9  Kan.  30. 


G17  OF  PROPERTY   EXEMPT  FROM  EXECUTION.  §211 

What  ma}'  be  held  as  "  necessary  household  and  kitchen 
furniture";  and  2.  What  are  the  "other  articles  and 
necessaries  of  the  bankrupt"  which  the  assignee  may 
"designate  and  set  apart,"  As  the  amount  to  be  set 
apart  is  not  to  exceed  five  hundred  dollars  in  value, 
there  is  little  danger  that  the  assignee  can,  without 
exceeding  this  limitation,  set  aside  an  unnecessary 
amount  of  household  and  kitchen  furniture  for  the  use 
of  an  ordinal^  family.  The  terms  "other  articles  and 
necessaries"  do  not  embrace  articles  of  mere  luxury, 
ornament,  fancy,  taste,  or  convenience;  but  only  those 
things  which  are  of  immediate  use,  and  needful  to  the 
debtor  or  his  family  in  almost  the  same  degree  as  is 
wearing  apparel  or  household  furniture.^ 

§  211.  Whether  the  Officer  must  take  Notice  of 
Defendant's  Bights  before  They  are  Claimed.  —  Per- 
haps the  very  first  question  in  reference  to  the  exemp- 
tion law  which  an  officer  will  desire  to  have  answered 
is,  whether  it  is  his  business  to  inquire  whether  par- 
ticular propert}^  is  exempt;  or  may  he  proceed  to  levy 
on  any  property  within  his  reach,  and  hold  it  until 
claimed  by  the  defendant?  Different  responses  are 
made  to  this  question  in  different  states.  In  many  of 
them,  all  property  is  considered  as  prima  facie  subject 
to  levy,  and  the  officer  may  safely  proceed  until  the 
defendant  claims  the  benefit  of  the  exemption  laws. 
Under  this  view  of  the  law,  the  exemption  is  a  mere 

»  See  In  re  Cobb,  1  Nat.  Bank.  Reg.  414;  1  L.  T.  B.  59;  In  re  Cxrabani,  2 
Miss.  449;  In  re  Ludlow,  1  N.  Y.  Leg.  Obs.  322;  In  re  Thkll,  4  Miss.  241;  lu 
re  Comstock,  1  N.  Y.  Leg.  Obs.  32G;  la  re  Williams,  4  Law  Rep.  155;  In  re 
Thornton,  2  Nat.  Iiank.  Reg.  189;  8  Am.  Law  Reg.  42.  Money  may  be  al- 
lowed to  the  bankrupt  as  a  necessary.  In  re  Tiioruton,  2  Nat.  Bank.  Reg. 
189;  8  Am.  Law  Reg.  42;  In  re  Law.son,  2  Nat.  Bank.  Reg.  54;  In  re  Hay,  7 
Nat.  Bank.  Reg.  344;  In  re  Grant,  1  Story,  312;  In  re  Daniel  Welch,  5  Nat. 
Bank.  Reg.  348;  5  Ben.  230. 


§•211  OF   TROPERTY   l-IXEMPT   FROM   KXKCUTION.  C18 

personal  j>rivileu^o,  to  whicli  tlio  (.Ictoiulant  must  make 
soiiu^  claim  l)olore  it  will  ho  conceded,  ;iiul  hi'inro  he 
can  ivcDVor  damaLres  because  it  has  not  been  recoor- 
nizAxI.*  And  if  the  defendant  chooses  not  to  assert  his 
ju'iviloge,  the  oflicer  has  no  sufficient  excuse  for  not 
]ovvin;j;  on  the  property."  "Construing  together  all  the 
statutory  provisions  bearing  upon  the  seizure  and  sale 
of  property  upon  execution,  the  inference  is  obvious 
that  all  the  property  of  execution  defendants  in  this 
state  is  considered  as  jrrhna  facie  subject  to  execution, 
and  that  it  is  the  duty  of  the  officer  holding  an  execu- 
tion to  proceed  until  some  claim  for  exemption  is  law- 
fully interposed."  ^  AVhether  the  rule  thus  broadly 
stated  will,  in  any  of  the  states,  be  applied  in  all  cir- 
cumstances admits  of  doubt.  It  is  unquestionably  true, 
in  some  of  the  states,  that  a  debtor  who  does  not 
within  some  reasonable  time  claim  his  exemption 
irrevocall}'-  waives  it,  and  that  therefore  neither  he  nor 
his  vendee  can  recover  the  property  from  a  purchaser 
thereof,  under  execution.*  But  the  debtor  may  claim 
the  exemption  within  a  reasonable  time,  and  then  the 
question  will  arise  whether  the  sheriff  lias  been  justi- 
fied in  proceeding  until  the  claim  is  interposed.  If  the 
debtor  knew  of  the  levy,  and  made  no  objections  to  it, 
his  temporary  acquiescence  might  estop  him  from  treat- 
ing the  officer  as  a  wrong-doer.  But  suppose  the 
debtor  is  ignorant  of  the  levy,  and  therefore  makes  no 

1  Howland  V.  Fuller,  8  Minn.  50;  Tullis  v.  Orthwein,  5  Minn.  377;  Borland 
V.  O'Neal,  22  Cal.  504;  Twinam  v.  Swart,  4  Lans.  263;  Daius  v.  Prosser,  32 
Barb.  291;  Baker  v.  Brintnall,  52  Barb.  188;  State  r.  Melogue,  9  Ind.  196. 
But  even  in  New  York  it  is  said  that  an  officer  cannot  justify  taking  all  the 
property  of  which  he  knew  part  to  be  exempt.     Frost  v.  Mott,  34  N.  Y.  253. 

Uireshannv.  Walker,  10  Ala.  370. 

»  Terrell  v.  State,  GG  Ind.  575;  Boesker  v.  Pickett,  81  Ind.  554;  State  v. 
Bouldcn,  57  Md.  314;  Oliver  v.  White,  18  S.  C.  235. 

*  Barton  v.  Brown,  G8  Cal.  11. 


619  OF  PROPERTY   EXEMPT  FROM  EXECUTION.  §211 

claim.    Meanvvhile  the  officer  enters  the  debtor's  house, 
takes  up  his  carpets  and  removes  his  furniture,  or  per- 
haps seizes  and  drives  away  the  family  cow.     We  doubt 
^Yhether  this  would  be  justified   in   any   state.     The 
better  rule  perhaps  is,  that  the  officer   should  make 
a  formal  seizure,  such  as  will  give  the  judgment  credi- 
tor the  benefit  of  the  property,  if  the  debtor  should 
elect  to  claim  his  exemption,  and  should,  on  the  other 
hand,    do  as  little  damage  to  the  debtor  as  possible 
until  he  has  knowledge  of  the  levy  and  an  opportunity 
to  assert  his  rights.      But  it  is  not  universally  true 
that  the   defendant   must    claim    his  exemption.      In 
Iowa,  an  action  of  replevin  was  maintained  against  the 
slieriff,  although  it  was  not  contended  that  aii}^  claim 
for  exemption  had  ever  been  interposed  otherwise  than 
by  the  suit.^     In  Minnesota,  if  the  property  is  such 
that  the  officer  can   know  that  it  is  exempt,  he  has 
no  right  to  levy  upon  it  all.     '*  Where  a  separate  and 
distinct  article  of  property  is  taken,  which  is  expressly 
exempt  by  statute,  and  the  party  holding  or  directing 
the  service  of  the  writ  knows  before  or  at  the  time  of 
such  service  that  the  property  seized  is  exempt,  there 
is  no  reason    for   claiming   that   the   liability  of  the 
attaching  party  does  not  occur  at  the  time  of  the  levy, 
nor  that  a  demand  and  refusal  is  necessary  in  order 
to  make  the  party  levying  liable  as  a  wrong-doer.     In 
such   circumstances,   the  wrong   is  committed   at  the 
instant  of  seizing  the  property,  and  the  cause  of  action 
then  accrues.     A  demand  could  not  be  necessary  to  in- 

'  Parsons  v.  Thomas,  62  Iowa,  .319.  The  date  of  the  taking  of  the  property- 
does  not  appear  in  the  report.  It  may  be  that  the  decision  was  controlled  by 
section  3072  of  the  code  as  amended  in  1882,  by  the  terms  of  which  tlie  defend- 
ant does  not  waive  his  exeiiiptiim,  nidess  he  fails  to  claim  it  after  being  noti- 
fied so  to  do.     Ellsworth  v.  Havre,  07  Iowa,  450. 


§':n  OF   ITvOrERTY   exempt  from   execution.  620 

iorin  tlio  ereclitor  of  the  riglits  of  the  debtor,  for  the 
statute  fixes  those,  and  a  demand  could  be  only  an  idle 
ceremony.  The  statute  makes  the  exemption  absolute, 
and  not  dependent  upon  selection  or  demand  by  the 
debtor."^ 

In  Xorth  Carolina,  it  is  said  that  the  officer  may 
levy  on  any  property,  unless  he  knows  it  to  be  exempt.^ 
In  Tennessee,  it  is  presumed,  until  the  contrary  is 
shown,  that  the  debtor  did  not  waive  his  rights.  The 
officer,  where  property  is  clearly  exempt,  can  justify  a 
levy  only  by  showing  tne  consent  of  the  defendant 
thereto.^  In  Wisconsin  and  Massachusetts,  officers 
are  required  to  know  the  exemption  laws,  and  interfere 
at  their  peril  w^hen  property  is  clearly  exempt.*  So 
in  Ohio,  the  officer  must  take  notice  that  there  are 
certain  articles  which  are  necessarily  exempt.^  In 
Michigan,  where  property  is  unconditionally  exempt, 
the  officer  must  not  take  it,  and  where  it  is  exempt 
up  to  a  certain  value,  he  must  have  an  appraisement 
made.^  In  Illinois  and  Missouri,  an  officer  about  to 
levy  must  inform  the  defendant  of  his  rights,  and  give 
him  an  opportunity  to  select  the  property  which  he 
will  claim  as  exempt;^  and  a  delivery  bond  obtained 
from  defendant  without  first  notifying  him  of  his  rights 
is  invalid.^     In  Tennessee  and  Texas,  the  exemption 

»  Lyn.l  V.  Picket,  7  Minn.  184;  82  Am.  Dec.  81. 
^  Hanson  v.  Edwards,  10  Ireil.  4.3. 
3  State  V.  Haggard,  1  Humph.  390. 

*  Oilman  v.  Williams,  7  Wis.  329;  34  Am.  Dec.  714;  Maxwell  v.  Reed,  7 
Wis.  582;  \Voods  v.  Keyes,  14  Allen,  23G;  92  Am.  Dec.  7GG. 

*  Frost  V.  Shaw,  3  Ohio  St.  270. 

6  Elliott  r.  VVhitmore,  5  Mich.  5.32;  WyckofiF ;;.  Wyllis,  8  Mich.  48. 

'  People  V.  Palmor,  46  III.  398;  95  Am.  Dec.  418;  State  v.  Romer,  44  Mo. 
99;  Bingham  v.  Maxcy,  15  111.  200;  State  v.  Barada,  57  Mo.  502;  Foote  v. 
People,  12  111.  App   04;  Shear  v.  Reynolds,  90  111.  238. 

*  Robards  v.  Samuel,  17  Mo.  555. 


621  OF  PROPERTY  EXEMPT  FROM  EXECUTIOX.  §212 

for  the  heads  of  families,  being  created  for  the  henefit 
of  the  whole  family,  is  an  absolute  right  which  need 
not  be  claimed  and  cannot  be  waived.'  In  Mississippi, 
the  officer,  in  a  case  of  doubt,  ma}^  summon  three  dis- 
interested citizens  to  decide.  Failing  to  do  this,  he  is 
responsible  as  a  trespasser  if  the  property  levied  on 
can  be  shown  to  be  exempt.^  Wherever  the  rule  of 
law  prevails  that  all  property  is  prima  facie  liable  to 
execution,  it  necessarily  follows  that  in  all  legal  con- 
troversies involving  a  claim  to  exemption,  the  onus  of 
proof  is  on  the  claimant.  He  must  show^  affirmatively 
every  fact  necessary  to  support  his  claim.^ 

§  212.  Claiming  Benefit  of  Exemption. — In  those 
states  where  the  exemption  laws  are  considered  as 
conferring  a  mere  personal  privilege,  which  must  be 
claimed  by  the  defendant,  the  first  inquiry  necessarily 
is.  How,  when,  and  by  whom  must  the  claim  be  made? 
As  the  privilege  is  personal,  the  claim  must  be  made 
by  the  defendant,  or  by  some  one  acting  for  him  by 
authority,  express  or  implied.*  The  general  language 
employed  in  some  of  the  cases  is  to  the  effect  that  the 
defendant  must  make  the  claim  in  person, — that  it 
cannot  be  made  by  an  agent.  But  we  apprehend  that 
the  true  rule  must  be  this :  that  no  one  has  a  right  to 
interfere  officiously  on  behalf  of  the  defendant;  and  that 
even  an  agent  in  custody  of  the  property  has  not,  by 

1  Ro33  V.  Lister,  14  Tex.  469;  Denny  u.  Wliite,  2  Cold.  283;  88  Am.  Dec.  596. 

*  Perry  v.  Lewis,  49  Miss.  443. 

»  Calhoun  v.  Knight,  10  Cal.  393;  Briggs  v.  McCuUough,  36  Cal.  542;  Dowl- 
ing  V.  Clark,  3  Allen,  570;  Davenport  ?•.  Alston,  14  Ga,  271;  Corp  v.  Griswold, 
27  Iowa,  379;  Van  Sickler  v.  Jacobs,  14  Johns.  434;  Griffin  v.  Sutherland,  14 
Barb.  456;  Daiiis  v.  Prosser,  32  Barb.  290;  Tuttle  v.  Buck,  41  Barb.  417;  Line's 
Appeal,  2  Grant  Cas.  197;  Swan  v.  Stephens,  99  Mass.  7. 

♦  Mickels  v.  Tousley,  1  Cow.  114;  Smith  v.  Hill,  22  Barb.  656;  Earl  v. 
Camp,  16  Wend.  562;  Wygart  v.  Smith,  2  Lans.  185. 


§  CI -2  OF   PROPERTY   EXEMPT  FROM  EXECUTION.  C22 

virtue  (^f  his  p^onoral  authority  as  agent  or  bailee,  any 
]>o\vcr  to  mixkc  the   elaini.      When,  however,  the  de- 
ieuilaut  lias  resolved  to  claim  his  exemption,  wc  can 
see  no  objection  to  his  doing  so  by  means  of  an  attor- 
ncv  or  agent,  acting  in  Ids  name  and  in  j)ursuancc  of 
his  instructions.     Nor  do  we  perceive  any  reason  why 
his  agents,  whether  such  agency  is  evidenced   by  an 
expressed  delegation  of  his  authority,  or  implied  from 
their  relationship  to  him,  or  from  their  being  put  in 
charge  of  the  property,  may  not,  in   his  absence,  and 
therefore  without  his  knowledge,  interpose  a  claim  in 
his  behalf     Otherwise  the  debtor's  family  are,  in  his 
absence,   helpless    as  against    a   threatened   seizure  of 
their  household  effects,  provisions,  and  wearing  apparel, 
and   must  remain  naked  and  unfed,  unless  relieved  by 
charity,  until  the  debtor  can  be  communicated  with,  and 
has  thereupon  announced  his  election  that  they  should 
not  be  thus  despoiled.     But  what  if  he  does  not  thus 
elect?     Husbands  there  have  been,  and  may  again  be, 
wlu)  are  inattentive  to  their  wives  and  children,  or  who 
v.-ilUully  inflict  upon  them  misery  and  want.     The  fam- 
ily of  such  a  man,  more  than  of  any  other,  is  within  the 
spirit  and  the  necessities  of  exemption  laws;  and  it  is  a 
strange  and  perverse  interpretation  of  these  laws  which 
denies   their   benefit,   even    temporarily,  to    a   family 
whoso  head  is  for  the  moment  absent  from  them,  or 
wiio,  though  not  absent,  is  indifferent  to  their  fate.     A 
statute  of  Ohio  declared  "that  it  shall  be  lawful  for  any 
resident  of  Ohio,  being  the  head  of  a  family,  and  not 
the  owner  of  a  homestead,  to  hold  exempt  from  levy 
and  sale  personal  property  to  be  selected  by  such  per- 
son, his  a'1-ent  or  attornev,  at  anv  time  before  sale,  not 
exceeding  five  hundred  dollars  in  value,  in  addition  to 


G23  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §212 

the  amount  of  chattel  property  now  b}^  law  exempted." 
An  action  was  brought  under  tliis  statute  by  a  wife, 
her  husband  joining,  to  recover  damages  sustained  by 
the  refusal  of  a  constable  to  set  off  property  as  exempt 
from  execution  on  her  demand.  Why  the  demand  was 
not  made  b}^  the  husband,  and  the  action  prosecuted 
solely  in  his  name,  does  not  appear.  The  court  con- 
strued the  statute  as  made  to  protect  the  family,  and 
therefore  saw  no  reason  why  the  wife  "  may  not  make 
the  demand  for  the  benefit  of  herself  and  children,  as 
she  is  their  natural  guardian  for  nurture  of  her  chil- 
dren."^ By  the  statutes  of  Iowa,  "when  a  debtor 
aV)sconds  and  leaves  his  family,  such  property  shall  be 
exempt  in  the  hands  of  the  wife  and  children,  or  either 
of  them."^  His  wife  has,  therefore,  on  his  absconding, 
the  right  to  claim  the  exempt  property,  and  where  he 
has  several  articles,  some  only  of  which  can  be  retained 
as  exempt,  she  is  authorized,  in  her  discretion,  to  select 
which  shall  bo  so  retained.^ 

In  Pennsylvania  numerous  decisions  have  been 
made,  under  which  it  is  clearly  settled  that  in  the 
absence  of  the  defendant  a  claim  for  the  benefit  of 
exemption  and  appraisement  may  be  made  by  his  wife, 
or  by  any  other  adult  member  of  his  family,  or  by  any 
other  person  placed  by  him  in  the  charge  of  the  prop- 
erty.* There  is  not,  unless  prescribed  by  statute,  any 
set  form  in  which  to  claim  an  exemption.^     It  may  be 

1  Regan  v.  Zecl;,  28  Ohio  St.  487. 

^  Code  Iowa,  sec.  3078. 

^  Malvin  v.  Chri.stopli,  54  Iowa,  5G2. 

«  Miller  v.  MeCartiiy,  28  Leg.  Int.  221;  Taylor  v.  Worrell,  4  Leg.  Gaz.  401; 
Meitzlcr  v.  Hellrincli,  5  Leg.  Gaz.  173;  .30  Leg.  Int.  210;  WauKh  r.  Burket,  3 
Grant  dxa.  319;  Wilson  v.  McElroy,  32  Pa.  St.  82;  McCarthy's  Appeal,  08  Pa. 
St.  217;  Meit/ler'H  Appeal,  73  Pa.  St.  308. 

"  Diehl  i:  II()ll)eii,  3U  Pa.  St.  213;  Keller  v.  lirickcr,  04  Pa.  St.  379;  Bassett 
t'.  Iniuau,  8  Cal.  270. 


§:i-2  OF  PROPERTY   EXEMPT  FROM   EXECUTION.  f.'Jt 

written  or  uiiwrittoii.^  It  is  suflieioiit  if  it  ij^ivos  the 
ofticcr  to  uiulorstand  that  the  property  upon  which  he 
has  levied,  tn*  is  about  to  lev}',  is  exempt  from  execu- 
tion, aiul  that  the  delendant  desires  to  avail  himself 
of  the  exemption.  Regarding  tlu>  time  within  which 
the  ri'^ht  to  exemption  nmst  be  claimed,  there  is  some 
difference  of  opinion.  Tlie  rule  most  generally  recog- 
nized is,  that  the  claim  will,  under  ordinary  circum- 
stances, not  be  too  late  if  made  at  any  time  previous 
to  the  sale.-  But  in  Pennsylvania  it  must  be  inter- 
posed more  promptly.  In  that  state,  a  defendant  hav- 
ing knowledge  of  a  levy  upon  his  property  must  not 
by  his  inaction  suffer  the  plaintiff  to  incur  trouble  and 
expense  in  preparing  for  a  sale  under  the  writ.  After 
the  property  has  been  advertised  for  sale,  the  claim  for 
exemption  is  in  that  state  generally  treated  as  irrevo- 
cably waived,^  except  in  eases  where  the  debtor  had 
no  knowledge  of  the  levy.  He  cannot  be  treated  as 
in  default,  and  his  rights  cut  off,  when  he  has  no  no- 

»  McCluskey  v.  McNcely,  3  Gilin.  578;  Simpsou  r.  Simpson,  30  Ala.  225; 
Bowman  v.  Smiley,  31  Pa.  St.  225;  72  Am.  Dae.  738;  Gamble  v.  Reynolds,  42 
Ala.  236.  In  the  last-named  state,  if  any  moneys  or  choses  in  action  are 
garnished  which  the  defendant  desires  to  claim  as  exempt,  lie  must  file  a 
verified  claim  in  the  court  whence  the  writ  issued,  showing  specifMially  what 


other  personal  property  he  has,  and  its  value,  and  where  situated.     CV>le  Ala., 
sec.  2S42;  McBrayer  v.  Dillard,  49  Ala.  174;  Todd  v.  McCravey's  Adm'rs,  77 
Ala.  408. 
>.  -  Bray  r.  Laird,  44  Ala.  295;  Pyett  v.  Rhea,  6  Heisk.  136;  Pate  v.  Swann, 

7  Blackf.  500;  McGee  r.  Anderson,  1  B.  Mon.  189;  36  Am.  Dec.  570;  Chesney 
V.  Francisco,  12  Neb.  626;  Shepherd  v.  Murrill,  90  N.  C.  208;  Rice  v.  Nolan, 
33  Kan.  28.  It  has  been  held  that  the  right  may  be  successfully  claimed  after 
the  commencement  of  the  sale.     State  v.  Emerson,  74  Mo.  607. 

»  DiefiFenderfer  v.  Fisher,  3  Grant  Cas.  30;  Bair  v.  Steinman,  52  Pa.  St.  423; 
Bowyer's  Appeal,  21  Pa.  St.  210;  Kensel  v.  Kern,  4  Phila.  86;  Neff's  Appeal, 
21  Pa.  St.  247;  Yost  v.  Heffner,  69  Pa.  St.  68;  Commonwealth  v.  l^oyd,  56  Pa. 
St.  402.  As  to  property  garnished,  see  Landis  v.  Lyon,  71  Pa.  St.  473;  Zim- 
merman V.  Briucr,  50  Pa.  St.  535.  In  the  case  of  real  estate,  the  claim  should 
be  made  before  the  inquisition.  Miller's  Appeal,  16  Pa.  St.  300;  Grant's  Ap- 
peal, 20  Pa.  St.  141;  Yardley  v.  Hulby,  1  T.  &  II.  Pr.  1089. 


625  OF  PROPERTY  EXEMPT  FROM   EXECUTION.  §215 

tice  of  their  peril/  In  Iowa  the  rule  formerly  pre- 
vailed that  a  debtor,  if  present  at  the  time  of  the  levy, 
must  then  assert  his  exemption  rights.  His  volun- 
tary surrender  of  the  property  to  the  officer  was  irre- 
trievable.- "We  are  of  opinion,"  said  the  court,  "the 
debtor  cannot  stand  by  and  know  the  levy  is  about 
to  be  made,  and  afterward  claim  the  exemption.  He 
must,  at  the  time,  in  some  manner,  indicate  to  the  of- 
ficer his  purpose  to  claim  the  property  as  exempt."^ 
The  code  of  that  state  has  changed  the  pre-existing 
law  upon  this  subject.  It  declares  that  "an}'  person 
entitled  to  any  of  the  exemptions  mentioned  in  this 
section  does  not  waive  his  rights  thereto  by  failing  to 
designate  or  select  such  exempt  property,  or  by  failing 
to  object  to  a  levy  thereon,  unless  failing  or  refusing  to 
do  so,  when  required  to  make  such  designation  or  selec- 
tion by  the  officers  about  to  levy."*  "Under  this  stat- 
ute, the  move  silence  of  the  defendant  at  the  time  of  the 
levy,  and  for  two  weeks  thereafter,  cannot  estop  him 
from  asscrtiiig  his  right  of  exemption."^  Where  prop- 
erty is  we. zed  under  attachment,  and  by  the  rules  of 
procedure  in  force  a  judgment  may  be  entered  direct- 
ing the  sale  of  the  property,  the  debtor's  rights  are 
determined  by  such  judgment,  and  he  cannot  after- 
ward claim  his  excmptioif?  The  rule  applicable  to 
such  a  case  has  been  thus  stated  and  explained:  "The 
])roperty  wliicli  it  is  sought  to  have  relca:,ed  is  not 
lield  by  defendant  under  execution,  but  by  virtue  of  an 
order  of  sale  duly  issued  in  an  attachment  proceeding 

»  llf.wanl  15.  &  L.  A.  v.  V.  &  R.  R.  R.,  102  Pa.  St.  220. 

*  Richardi  r.  Haines,  .30  Iowa,  57G. 

'  Angcll  V.  Johnson,  51  Iowa,  C2G;  33  Am,  Rep.  152;  Moffitt  v.  Adama,  6ft 
Iowa,  44. 

*  Code  Iowa,  sec.  3072. 

*  Ellsworth  V.  Savre,  07  Iowa,  450. 

Vol.  I.  -  40 


§:iJ  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  626 

Iroiii  a  court  oi'  competent  jurisdiction.  It  is  m  eus- 
tod}'  of  the  law,  and  under  the  solemn  judgment  of  q 
court,  and  so  long  as  that  judgment  stands  unreversed, 
it  is  entitled  to  our  respect  in  all  collateral  proceedings. 
When  tlie  property  was  seized  in  attachment,  if  the 
relator  claimed  and  desired  to  hold  it  as  exempt,  he 
should  have  brouufht  tlic  matter  to  the  attention  of 
the  court  in  whose  custody  it  was,  and  thus  have  ob- 
tained its  release;  or  if  he  preferred  so  to  do,  he  could 
at  any  time  before  final  judgment  against  him  have 

replevied  it  from  the  officer  in   whose   possession  it 

"  1 
was. 

Where  the  officer  has  several  writs  in  his  hands 
against  the  same  defendant  at  the  same  time,  one  de- 
mand for  exemption  is  probably  sufficient;  but  as  to 
successive  writs,  the  rule  is  different,  and  a  claim  for 
exemption  must  be  made  against  each  writ.^  When- 
ever the  law  prescribes  a  method  by  which  the  claim 
for  exemption  shall  be  made,  a  compliance  with  the 
method  ii  indispensable  to  the  preservation  and  asser- 
tion of  the  right.^  Occasional  cases  must  necessarily 
arise  in  which  a  claim  for  exemption  is  not  interposed 
because  of  the  i^fnorance  of  the  defendant  that  his 
rights  are  in  jeopardy.  This  may  happen  from  sick- 
ness or  temporary  absence,  and  also  from  other  causes 
sufficient  in  their  nature  to  fully  exonerate  the  defend- 
ant from  the  charge  of  laches  or  of  willful  inattention. 

^  State  V.  Krumjjus,  13  Neb.  321;  State  v.  Manley,  15  Ind.  8;  Perkins  u. 
Bragg,  29  Ind.  507.  For  rule  in  Pennsylvania,  see  Bcttenger's  Appeal,  76  Pa. 
St.  105;  Howard  B.  &  L.  A.  v.  P.  &  R.  II.  R.,  102  Pa.  St.  220;  Cornman's  Ap- 
peal, 9)  Pa.  St.  254. 

2  Strouse  v.  Becker,  38  Pa.  St.  190;  80  Am.  Dec.  474;  Betchel's  Appeal,  2 
Grant  Gas.  375;  Dodson'.^  Appeal,  25  Pa.  St.  232. 

^  Crow  V.  Whitworth,  20  Ga.  38;  Gavitt  v.  Doub,  23  CaL  79;  Gresham  v. 
Walker,  10  Ala.  370;  Collins  v.  Boyd,  50  Pa.  St.  402. 


627  OF  PROPERTY  EXE:MPT  FROM  EXECUTION.  §-2i:a 

The  question  very  naturally  arises  whether,  in  such 
circumstances,  his  right  of  exemption  is  lost.  The  de- 
cisions on  the  subject  arc  not  sufficiently  numerous  to 
warrant  any  positive  answer  to  this  question.  In  Ala- 
bama it  is  settled  that  the  right  of  exemption,  unless 
claimed,  is  lost,  although  the  defendant  never  knew 
that  his  property  had  been  levied  upon.^  In  Cali- 
fornia, an  action  was  sustained  for  selling  exempt 
property,  the  debtor  having  been  absent  on  account 
of  sickness  at  the  time  of  the  levy  and  sale,  and  hav- 
ing thereby  been  prevented  from  claiming  the  exemp- 
tion. But  in  this  case  it  was  shown  that  the  plaintiff 
in  execution  was  aware  of  the  rights  of  the  debtor,  he 
having  claimed  and  procured  the  release  of  the  same 
property  when  taken  under  a  previous  writ  issued  to 
enforce  the  same  judgment.^ 

§  S12  a.    Claiming  the  Right  of  Selection. — The 

debtor  may  have  more  of  a  particular  kind  of  property 
than  is  exempt  from  execution.  In  this  event,  he  has 
the  riofht  to  select  which  he  will  claim.^  The  law  will 
not  permit  the  levying  officer  to  make  the  selection,  for 
if  it  did,  he  would  doubtless  substantially  impair  the 
debtor's  right  of  exemption  by  leaving  him  the  least 
valuable  of  the  exempt  articles.*  The  right  to  select 
need  not  be  claimed  in  any  prescribed  form.  It  is 
sufficient  that  the  debtor  shows  a  preference  for  the 

>  Bell  V.  Davis,  42  Ala.  4G0. 

2  Haswell  v.  Parsons,  15  Cal.  26G;  76  Am.  Dec.  480. 

»  Stato  V.  Haggard,  1  Humph.  :i90;  Finnin  v.  Maluy,  33  N.  Y.  Sup.  Ct. 
382;  Elliott  V.  Flauigan,  37  Pa.  St.  425;  Austin  v.  Swank,  9  lud.  109;  Lock- 
wood  V.  Younglove,  27  Barb.  505;  Fuller  v.  Sparks,  39  Tex.  136;  Bingham  v. 
Maxcy,  15  111.  290;  Pyett  v.  Rhea,  G  Heisk.  136.  But  the  officer  is  not  liable 
for  selling  all  wliere  the  debtor  does  not  demand  the  right  to  select  wliat  ia 
exempt.     Nash  v.  Farrington,  4  Allen,  157;  Clappr.  Thomas,  5  Allen,  158. 

*  Parker  v.  Haley,  CI)  Iowa,  325;  Bayne  v.  Patterson,  40  Mich.  658. 


S'JlCa  OF   rROPERTY   EXEMPT  FROM   EXECUTION.  C'2S 

pntportv  taken,  and  un:;os  the  liardsliip  of  olic  officer's 
seizin*^  it,  rather  than  the  other  property  then  present 
whuli  {\\c  (K'htor  staters  to  be  less  valuable  or  useful  to 
liini.'  The  right  of  selection  must  be  so  exercised  as 
not  to  work  a  iVaud  upon  the  creditor  by  permitting 
the  debtor  to  select  as  exempt  that  which  has  been 
le\  led  u[H)n,  and  at  the  same  time  conceal  or  dispose  of 
other  property  which  might  have  been  levied  upon  had 
the  right  of  selection  been  promptly  exercised.  If  the 
defendant  has  a  greater  number  of  chattels  of  any 
kind  than  is  exempt  from  execution,  and  removes  or 
conceals  any  of  them  to  avoid  a  levy  thereon,  this  is 
conceded  to  be  an  irrevocable  election  to  claim  as 
exempt  the  property  so  removed  or  concealed,  and  he 
will  not  be  permitted  to  afterward  claim  in  its  stead 
property  levied  upon.  But  some  of  tlie  authorities  in- 
sist that  as  long  as  the  defendant^oes  no  affirmative 
act  to  keep  property  out  of  the  officer's  way,  he  may 
select  as  exempt  the  property  levied  upon,  without 
tendering  for  levy  the  other  chattels  in  his  possession 
of  the  same  class  as  those  levied  upon."  The  better 
rule,  as  we  conceive,  when  there  are  several  articles, 
out  of  which  the  debtor  has  the  right  to  select  a  cer- 
tain number  as  exempt,  is  that  he  must,  on  being 
informed  of  the  levy,  or  within  a  reasonable  time  there- 
after point  out  to  the  officer  not  only  those  which  he 
selects  as  exempt,  but  also  those  wliich  remain,  and 
tender  the  latter  to  the  officer,  or  at  least  give  him  an 
opportunity  to  levy  thereon.^  In  adopting  this  rule, 
the  supreme  court  of  California  said:  "We.should  not 

'  Clark  V.  Bond,  7  Baxt.  288. 

■■'  Rosd  V.  Hannah,  IS  Ala.  125;  Bray  v.  Laird,  44  Ala.  296. 
»  Fuller  r.  Si.arks,  39  Tex.   13G;  Smothers  v.  Holly,  47  111.  331;  Bonnell  v. 
Bown.an,  5"^  111.  4li0. 


C29  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §212a 

lose  sight  of  the  beneficent  objects  of  the  exemption 
laws,  or  do  or  say  aught  to  abridge  the  rights  secured 
thereby.     On  the  other  hand,  the  wise  provisions  of 
these  laws  should  not  be  used  as  a  means  for  unjustly 
shielding  propert}'  not  exempt  from  the  claims  of  cred- 
itors.    It  is  quite  proper  to  give  the  debtor  a  reason- 
able time  within  whicli  to  make  his  selection  of  that 
which  he  will  claim,  but  if  he  does  not  do  so  at  the 
time  a  levy  is  made,  the  opportunities  and  temptations 
to  dispose  of  the  property  not  levied  upon,  or  place  it 
beyond  the  pale  of  the  law,  and  then  claim  as  exempt 
that  which  has  been  taken  in  execution,  becomes  great, 
and,  if  yielded  to,  may  result  in  a  fraud  upon  creditors. 
If  the  exemption  is  claimed  at  the  time  of  the  levy, 
there    being   other   property    of    the   same   kind    not 
claimed,  it  is  reasonable  to  suppose  the  officer  holding 
an  execution  will  levy  upon  that  not  claimed,  and  his 
opportunity  to  do  so  shall  not  be  abridged  by  reason  of 
the  claims  of  exemption  being  asserted  at  a  later  date. 
We  hold,  therefore,  where,  as  in  this  case,  the  debtor 
has  more  property  of  a  particular  kind  liable  to  seizure 
than  is  exempt  from  execution,  and  a  writ  is  levied 
upon  a  portion  only  thereof,  leaving  as  much  as  is  by 
law  exempt,  and  thereafter  the  debtor  for  the  first  time 
claims  as  exempt  the  property  levied  upon,  or  a  portion 
thereof,  and  leaving  in  the  hands  of  the  officer  a  less 
quantity  than  is  necessary  to  satisfy  the  writ,  then, 
and  in  that  case,  the  debtor,  to  make  good  his  claim  of 
exemption,  must  offer  to  surrender  to  the  officer  the 
other  property  in  his  hands  of  the  same  general  kind 
subject  to   execution,  or  so  much   thereof  as  may  bo 
necessary  to  satisfy  the  writ;  and  failing  to  do  so,  he  is 
not  entitled  to  recover  against  the  officer."^     If  the 

*  Keybcrs  v.  McCombcr,  07  C'al.  395. 


§-:i':;i  OF  PROPERTY   KXE^IPT  FROM   EXECUTION.  C,:\0 

]irt>p(>rt\'  on  wliirli  an  oiru'in*  lias  li^viod  is  uiu|uostion- 
jiMv  oxrinpt,  till'  ili'l)t.or  not  liavin;;'  oilirr  cliattrls  of 
the  same  kind  so  asri  to  prosont  the  necessity  of  liis 
clectinijf  as  l>et\veon  two  or  more  which  he  will  claim 
as  exempt,  his  right  to  exemption  cannot  he  denied 
hiH-ausc  of  his  not  tendering;"  l'>r  levy  other  chattels  of 
a  ditlerent  class  not  exempt  tVom  execution.^  The  de- 
fendant is  always  entitled  to  a  reasonahle  time  in  which 
to  determine  what  property  ho  will  claim  as  exempt.^ 
With  respect  to  what  is  a  reasonable  time,  the  rule  is 
more  strict  than  in  the  case  of  a  mere  claim  for  exemp- 
tion. Vrhen  the  right  of  the  debtor  to  an  exemption 
has  not  been  denied,  and  the  only  question  is  whether 
he  will  select  as  exempt  the  property  which  has  been 
seized  rather  than  that  which4ias  been  left  in  his  pos- 
session, he  must  exercise  reasonable  diligence. 

In  California,  a  debtor,  having  more  horses  than  by 
law  were  exempt,  suffered  a  levy  on  part  of  them  to  be 
made,  and  possession  of  the  property  to  be  retained  for 
four  months,  when  he  claimed  the  right  to  select  those 
levied  upon  as  exempt.  It  was  held  that  his  right  of 
selection  had  been  lost  by  his  unreasonable  delay  in  ex- 
ercising it.^  The  selection  "must  be  done  so  promptly 
as  not  to  mislead  the  officer  into  the  belief  that  the 
owner  acquiesces  in  the  selection  which  has  been 
made."*     It  has  been  said  that  "this  selection  should 

^  Amend  v.  Muq)hy,  09  111.  337. 

»  Elliott  r.  Flanigan,  37  Pa.  St.  425;  Austin  v.  Swank,  9  Ind.  109;  Pyett  v. 
Rhea,  G  Ileisk.  13G. 

3  Borland  v.  O'Neal,  22  Cal.  504. 

♦  Savage  v.  Davis,  134  Mass.  401.  In  Illinois,  the  oflBcer  may  notify  the 
defeuilant  that  he  holds  an  execution  against  him,  and  will  at  a  time  and  jilace 
designated  levy  the  same.  If  the  defendant  neglects  to  he  present  for  the  pur- 
pose  of  making  a  selection  of  property  to  withliokl  from  the  levy,  ho  loses  the 
"right  to  come  in,  on  a  day  sulwequent  to  the  levy,  and  make  a  selection  of 
the  property  he  desired  to  claim."    Wright  v.  Dcyoe,  80  111.  490. 


631  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §  212  a 

be  made  by  the  debtor  at  the  time  of  the  levy,  if  he 
be  present;    but  if  not  present,  he   should  make  the 
selection  and  notify  the  officer  within  a  reasonable  time 
thereafter,  and  before  the  sale."^     To  require  an  im- 
mediate selection  is  perhaps  too  harsh,  as  it  may  coerce 
the  debtor  into  acting  while  he  is  surprised  and  dis- 
concerted by  the  seizure,  and  has  not  reflected   suO- 
ciently  to  exercise  a  wise  forethought.     But  if  he  does 
not  make  his  selection  then,  he  must  certainly  do  so 
without  needless  delay,  after  having  notice  of  the  levy.- 
If,  on  being  notified  by  the  officer  to  appear  at  a  desig- 
nated time  and  make  his  selection,  the  debtor  declines 
the  opportunity,  he  waives  his  right   to  select."     An 
officer  about  to  levy  a  writ  found  the  defendant  in  the 
possession  of  three  horses,  upon  one  of  which  a  levy 
was  made.     The  defendant  claimed  it  as  exempt,  but 
refused  to  make  any  selection  between  it  and  the  other 
two,  on  the  ground  that  the  title  in  them  was  in  one 
Allen,  and  whether  defendant  had  any  interest  in  them 
could  be  ascertained  only  on  a  settlement  between  him 
and  Allen.     Trover  was  subsequently  brouglit  for  the 
horse.     At   the  trial,  it  was  proved    that   defendant 
owned  the  three  horses,  but  it  did  not  appear  that  his 

1  Frost  r.  Shaw,  3  Ohio  St.  274;  Cook  v.  Scott,  G  III.  342. 

a  Zcilke  V.  Morgan,  50  Wis.  5(30. 

*  Butt  V.  Green,  2!)  Ohio  St.  007.  In  a  case  where  the  debtor  had  two  cows, 
one  of  which  waa  exempt,  and  lie  delayed  for  some  five  or  six  days  to  make  a 
Bclcction,  tlie  following  instruction  to  the  jury  was  approved:  "Tiie  plaintiff 
had  the  right  of  election  as  to  which  cow  should  ho  exempt  under  the  statute. 
If  he  failed  to  clout  in  a  reasonahlo  time,  tlie  olficcr  would  have  tho  right  to 
make  an  election  for  him,  and  ho  would  he  bound  by  tho  olfuer's  election.  It 
ij  a  (^ucHtion  for  the  jury  to  determine  whether  tlie  plaintiff  exercised  his 
right  of  election  within  a  rea.sonablo  time  under  all  the  circumstances  of  the 
case;  that  if  he  did  not  so  elect  within  a  reasonable  time,  and  they  should  lind 
that  the  officer  in  good  faith  made  an  election  for  him,  then  the  plaintiff  would 
bo  bound  by  sucii  selection."  The  jury  returned  a  verdict  for  the  defendant. 
Savage  v.  Davis,  134  Mass.  403. 


§-.M3  OF   PKOPERTY   EXEMPl'   FllOM   EXKCUTION.  f.32 

ownorsliip  li;ul  not  Iuhmi  clcptMidont  oi\  his  settlement 
with  AlK'ii.  nor  that  hr  had  si.UL^lit  to  mislratl  the 
officer.  'I'lu'  cla'nn  of  tlu-  horse  levied  upon  was  ad- 
iiul-'ed  Xo  l)e  a  sutlieirnt  sc^lt^ctiou  of  it  us  exempt. 
The  laet  that  he  did  not  aeknowleclLje  the  ownersliip 
of  the  others  was,  under  the  circuuistanees,  inuuaterial.' 
The  rijjjht  of  selection  may  he  claimed  orally  as  well  as 
in  writiuL^.'-  The  form  of  tlie  d(>mand  is  inunaterial. 
It  will  he  construed  with  great  liherality,  and  will  he 
adjudged  suiluient  if  its  terms  are  such  that  an  officer 
of  ordinary  intelligeme  would  understand  therefrom 
which  of  the  chattels  u[.on  which  a  levy  has  been  made 
or  threatened  the  debtor  prefers  to  retain  as  exempt.' 
If  the  chattels  possessed  by  the  debtor  do  not  exceed 
the  exemption  allowed  him  by  law ;  there  is  no  occasion 
for  any  selection. 

g  213.  Claiming  tho  Benefit  of  Appraisement  Laws. 
—  Some  of  the  state  statutes,  instead  of  designating 
specific  articles,  exempt  property  not  to  exceed  a  speci- 
fied value.  When  this  is  the  case,  the  property  to  be 
retained  by  the  debtor  is  usually  ascertained  by  an 
appraisement  made  by  his  request.  The  officer,  when 
the  claim  for  exemption  and  appraisement  is  made, 
is  required  to  summon  three  disinterested  and  compe- 
tent persons,  who,  after  being  duly  sworn,  perform  tlic 
duty  of  appraisers.  In  Indiana  the  claimant  nmst 
furnish  thu  officer  with  an  inventory  of  his  prop- 
erty, verified  by  oath,*  and  demand  that  the  amount 

'  Plimpton  r.  Spraguc,  47  Vt.  4(37. 

»  McCluHkey  r.  McNcily,  8  111.  582;  Simpson  t>.  Simpson,  30  Ala.  225;  Fin- 
nin  F.  Malloy,  3.3  N.  Y.  Sup.  Ct.  390. 

*  Sec  caAca  last  cited. 

♦  Mark  v.  Bute,  15  lud.  90. 


633  OF  PROPERTY   EXEMPT  FROM  EXECUTION.  §213 

exempt  be  set  off  to  hira.^  In  Pennsylvania,  no  par- 
ticular form  of  claim  is  required.  Tlius  in  deciding 
whether  a  claim  made  by  one  Holben  was  in  due  form, 
the  court  of  the  last-named  state  said:  "The  testi- 
mony was,  that  Holben  'warned  the  defendant  not  to 
sell, — tliat  he  claimed  this  under  the  three-hundred- 
dollar  law,  —  tliat  he  claimed  it  for  his  family.'  The 
court  held  this  a  sufficient  demand.  We  think  it  was. 
The  statute  does  not  prescribe  the  form  of  the  demand ; 
and  it  would  be  very  adverse  to  the  spirit  of  the  statute 
to  hold  a  debtor  to  any  technical  accuracy  in  stating 
his  demand.  A  demand  or  notice  there  must  be;  but 
any  words  which  are  sufficient  to  apprise  the  officer  that 
the  statutory  exemption  is  the  thing  claimed  is  suffi- 
cient."^ If  several  writs  are  in  the  officer's  hands  at 
the  same  time,  one  demand  is  sufficient  as  against  all.^ 
But  a  demand  against  one  writ  does  not  operate  against 
subsequent  writs.^  The  fact  that  an  appraisement 
has  been  demanded,  and  a  set-off  made  in  pursuance 
thereof,  does  not  prevent  a  levy  on  the  same  property 
under  a  subsequent  writ,  unless  the  benefit  of  appraise- 
ment is  demanded  against  that  writ  also.^  An  ap- 
praisement may  be  vacated  by  the  court,  if  manifestly 
too  low,"  or  if  not  publicly  conducted.^  In  IMichigan, 
an  officer  lL;v3'ing  upon  property,  part  of  which  is 
exemi)t,  must  have  an  inventory  and  appraisement  of 
the  whole  made,  and  then  allow  the  debtor  to  select 

>  Graham  v.  rrockott,  18  lud.  119. 

'  Dichl  r.  Hollwm,  DO  Pa.  St.  216;  Keller  v.  Bricker,  G4  Pa.  St.  379. 
•  Bctclier's  Apiical,  2  Ciraut  Cas.  .'175. 

«  McAffHiHo'H  Aj.poal,  .32    l\i.  St.  270;   Dodson'a  Ai.itcal,  25   I'a.   St.  232; 
Linen  Appeal,  2  <iraiit  C'aM.  197. 
'Fiiilcy  r.  Sly.  U  Iri.l.  206. 

•Sle<.i)«r  r.  Niciiol  ion,  I  I'lnli.  .318;  FUbor  v.  lluglica,  9  Pittab.  L.  J.  CO. 
'  IIa<l«ly  I'.  Sproulo,  18  Leg.  Int.  141. 


§':U  OF  TROrEP-TY  EXEMPT  FROM  EXECUTION.  C34 

which  ho  will  irtaiii;'  hut  tlio  ilrfctulant  is  not  ontitlocl 
to  have  tho  inventory  and  appraisement  embrace  prop- 
erty situate  out  of  the  county  in  which  the  levy  is 
maile.-  A  claim  made  to  an  oflicer,  and  not  allowed 
by  him,  may  bo  allowed  by  his  successor  in  office.^ 
By  the  setting  oil'  of  property  to  a  debtor  as  exempt, 
it  is  released  iVom  tlie  execution  Yiru.'^ 

§  214.  Waiver  of  Exemption  Bights.  —  In  some 
instiinces,  the  claim  lor  exemption  may  be  disallowed, 
because  of  some  prior  act  or  neglect  of  the  claimant. 
The  consideration  of  this  topic  is  necessarily  involved 
in  the  two  precedinp^  sections.  The  claim  must  bo 
made  in  the  manner  and  within  the  time  required  by 
the  law  of  the  state  as  expressed  in  its  statutes  or 
in  the  decisions  of  its  courts.  In  Iowa,  as  we  have 
seen,  the  rule  formerly  prevailed  that  the  voluntary 
surrender  of  the  property  to  the  levying  officer  with- 
out then  interposing  any  claim  or  objection,  was  an 
irrevocable  waiver  of  his  claim. ^  If  such  surrender 
was  made  by  the  debtor  with  a  knowledge  of  his 
rights,  and  was  accompanied  by  such  words  or  acts  as 
indicated  his  intention  to  renounce  the  benefit  of  the 
law,  it  would  probably  afford  sufficient  reason  for  hold- 
ing him  estopped  from  subsequently  pressing  his  claim,® 
especially  if  it  appeared  that  the  judgment  creditor  had 
incurred  serious  expense  in  keeping  the  property,  or  in 
advertising  or  preparing  it  for  sale,  or  had  been  other- 

*Comp.  Laws,  Mich.,   ed.    1871,   sees.   G102,  G103;    Elliott  v.  Whitmore, 
5  Mich.  532;  Wyckoff  v.  Wyllia,  8  Mich.  48. 
»  Alvor.l  r.  Lent,  23  Mich.  3G9. 
'  SciWrt  ?'.  Kreihcl,  5  Leg.  Gaz.  189. 

♦  Hall  V.  Hough,  24  Ind.  273. 

*  Richards  r.  Hainea,  ."O  Iowa,  574. 

•  Fogg  r.  Littk-add,  G8  Me.  52. 


635  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §  2U 

wise  substantially  damnified  by  the  debtor's  conduct. 
But  it  ha?  been  held  that  the  license  to  take  exempt 
property  could  be  revoked,  and  the  property  reclaimed, 
at  any  time  prior  to  the  sale.^     At  all  events,  it  seems 
that  the  rule  to  be  gathered  from  the  majority  of  the 
reported  cases  on  the  subject  is,  that  the  mere  sur- 
render of  property  to  an  officer,  or  the  execution  of  a 
bond  for  its  surrender  to  liim,  does  not  estop  the  debtor 
from   subsequently  claiming  such  of  the  property  as 
may  be  exempt."     Nor  can  the  debtor's  rights  be  preju- 
diced by  the  execution  of  a  delivery  bond  under  pro- 
test.^    Nor  is  a  protest  essential.     The  giving  of  a 
delivery  bond  seems  not  to  estop  the  defendant  from 
claiming  his  exemption  at  any  time  prior  to  the  sale.^ 
The  delivery  of  property  by  a  garnishee  to  an  officer 
to  be  sold  is  no  waiver  of  exemption,  for  the  obvious 
reason  that  the  garnishee,  from  his  want  of  interest  in 
the  property,  has  no  authority  to  waive  anything.^     If 
the  defendant  claims  his  exemption,  and  does  all  the 
law  exacts  of  him  to  prevent  a  sale,  there  is  no  ground 
to  impute  a  waiver  to  him.     Being  satisfied  that  the 
officer  will  persist  in  the  sale,  he  may  become  the  lat- 
ter's  bailee  until  the  sale,  and  may  then  bid  in  the 
property  himself,  or  procure  others  to  do  so,  without 
impairing  his  right  to  proceed  against  the  officer  by 
any  apjiropriatc  action  to  recover  the  value  of  the  goods 
sold,  or  damages  resulting  from  their  seizure  and  sale.° 
An   agreement  by  a  debtor  to  turn   certain   exempt 

»  Jordan  v.  Autrey,  10  Ala.  270;  Wallis  v.  Truesdell,  G  Pick.  455. 
»  Eltzroth  r.  Webster,  15  Iiul.  21;  77  Am.  Dec.  78;  Perry  v.  Henslcy,  14 
B.  Mon.  474;  01  Am.  Dec.  104;  Jordan  v.  Autrey,  10  Ala.  270. 

>  Atkinson  r.  Gatclicr,  2.3  Ark.  101;  Servanti  v.  Lu»k,  43  Cal.  238. 

♦  Desmond  r.  State,  15  Nob.  438;  Daniela  v.  Hamilton,  52  Ala.  15. 
'  Fanning  r.  Nat.  Bank,  70  111.  5.3. 

•  Parham  v.  McMurry,  32  Ark.  201. 


gCUa  OF  TROPERTY  EXEMPT  FROM  EXECUTION.  636 

property  over  to  his  creditors  to  secure  the  payment  of 
their  debt,  or  over  to  a  third  person  to  sell  for  the 
benefit  of  creditors,  does  not  justify  them  in  levying  an 
execution  thereon,  nor  preclude  him  from  claiming  his 
exemption  rights  if  they  do;  for  his  agreement  does 
not  contemplate  the  forced  sale  of  the  property  under 
execution.^ 

§  £14  a.  Forfoitare  of  Exemption  Rights. — Though 
the  debtor  has  done  nothing  indicating  any  willingness 
to  waive  his  exemption  rights,  it  may  be  insisted  that 
he  has  in  some  manner  forfeited  such  rights.  If  ex- 
empt goods  be  so  mixed  with  others  that  they  can  no 
longer  be  identified,  the  right  of  exemption  is  lost. 
The  claimant  must  always  be  able  to  point  out  the 
property  claimed."  The  exempt  and  non-exempt  prop- 
erty having  been  inextricably  blended,  the  exemption 
must  necessarily  be  denied  as  to  the  whole.  Else  the 
creditor  is  compelled  to  suffer  and  the  debtor  permitted 
to  profit  by  the  act  or  neglect  of  the  latter.  The  fact 
that  the  debtor  has  mortgaged,^  or  is  about  to  sell,* 
property,  is  no  waiver  of  forfeiture  of  his  right  to  claim 
its  exemption  from  execution.  But  the  cases  in  which 
a  forfeiture  of  exemption  rights  is  claimed  with  the 

1  Washburn  v.  Goodheart,  88  111.  229;  Haswell  v.  Parsons,  15  Cal.  266;  76 
Am.  Dec.  480. 

2  Smith  V.  Turuley,  44  Ga.  243;  Roth  v.  Wells,  29  N.  Y.  471. 

»  Collett  V.  Jones,  2  B.  Mon.  19;  36  Am.  Dec.  586;  Vaughan  v.  Thompson, 
17  111.  78;  Hill  V.  Johnson,  29  Pa.  St.  362;  Patten  v.  Smith,  4  Conn.  450;  10 
Am.  Dec.  166. 

*  Shaw  V.  Davis,  55  Barb.  389;  Duvall  v.  Rollins,  68  N.  C.  220.  In  the  last- 
named  case  the  debtor  sold  the  property,  but  the  vendee  rescinded  the  sale. 
Where  a  debtor,  having  two  yokes  of  oxen,  sold  one  yoke  conditionally,  the 
other  was  held  exempt.  Wilkinson  v.  Wait,  44  Vt.  508;  8  Am.  Rep.  391. 
But  sending  goods  to  auction-room  was  held  to  be  a  waiver  of  exemption  rights 
in  Kennedy  v.  Haselton,  4  Chand.  19. 


C37  OF  PROPE?tTY  EXEMPT  FROM  EXECUTION.  §214a 

greatest  plausibility  are  those  in  which  he  has  been 
guilty  of  some  act  of  bad  faith  towards  his  creditors. 
In  Pennsylvania  a  debtor  who  conceals  his  property, 
or  otherwise  attempts  to  delay  or  prevent  the  execution 
of  the  writ,  forfeits  the  benefit  of  the  exemption  law/ 
This  rule  does  not  seem  to  have  its  foundation  in  any 
provision  of  the  statutes  of  that  state.  It  resulted 
from  the  belief  of  the  judges  that  these  statutes  were 
designed  for  the  exclusive  benefit  of  honest  debtors,  — 
for  those  onl}'  who  would  not  seek  to  avoid  the  opera- 
tion of  the  WTits  directed  against  them.  If,  however, 
we  concede  that  the  dishonest  are  not  worthy  of  the 
benefits  of  the  exemption  laws,  it  still  seems  that  we 
should  not,  as  judges,  enforce  our  peculiar  ideas  until 
they  had  met  the  expressed  approval  of  the  legislature. 
Judges  ought  not  to  pronounce  sentence  where  the  law 
has  provided  no  penalty.  Besides,  it  must  be  remem- 
bered that  one  of  the  chief  objects  of  these  laws  is  to 
protect  and  provide  for  the  debtor's  family,  and  that 
this  object  would  be  partially  subverted  by  making  the 
benefit  of  the  law  depend  upon  the  character  of  the 
debtor.  Hence  the  position  taken  by  the  courts  of 
Pennsylvania  has  been  vigorously,  and  we  think  suc- 
cessfully, assailed,  as  will  appear  from  the  following 
quotation,  extracted  from  an  opinion  of  the  highest 
court  in  Mississippi:  ''This  exemption  is  granted  with- 
out any  reference  to  the  merit  or  demerit  of  the 
debtor.  It  is  founded  upon  a  policy  that  has  no  re- 
lation to  tlie  character  or  conduct  of  the  parties  claim- 
incr  the  benefit  of  it.  It  is  the  interest  of  the  state  that 
no  citizen  sliould  be  stripped  of  the  implements  neces- 

1  Strouse  v.  Becker,  .38  Pa.  St.  190;  80  Am.  Dec.  474;  Carl  v.  Smith,  28 
Leg.  Int.  3G6;  Emerson  v.  Smith,  51  Pa.  St.  90;  88  Am.  Dec.  6G6.  See  Brack- 
ett  V.  Watkins,  21  WeuJ.  08. 


§214  a  OF  PROPERTY   EXEMPT  FROM   EXECUTION.  G3S 

saiT  to  eiuiblo  liiiu  to  rarry  on  his  usual  omployment, 
and  that  ftunilios  should  not  be  made  paupers  or  beg- 
gars, or  dc[n'ived  of  shelter  and  rc^asonable  comforts,  in 
consequence  o^  the  follies,  the  vices,  or  the  crimes  of 
their  head.  The  riglit  to  enjoy  the  benefit  of  the  ex- 
emption does  not  in  any  manner  depend  upon  the  ques- 
tion whether  the  party  is  solvent  or  insolvent;  whether 
he  possesses  other  slaves  or  other  propert}",  or  not;  or 
whether  he  has  or  has  not  made  a  fraudulent  disposition 
of  other  property,  with  intent  to  hinder  and  delay  his 
creditors.  The  statute  makes  no  such  exceptions,  and 
it  is  not  for  the  court  to  ingraft  them  upon  it."^  In 
^lissouri  a  suit  for  levying  upon  exempt  property  was 
resisted,  on  the  ground  that,  at  the  time  of  the  levy, 
the  debtor  had  other  property,  wliich  he  concealed,  to 
avoid  its  being  levied  upon.  The  court  said :  "  If  the 
defendant  in  the  execution,  who  claims  the  property  to 
be  exempt,  has  concealed,  or  hid,  or  placed  beyond  the 
immediate  reach  of  the  oflScers  of  justice  his  property, 
and  this  fact  be  known  to  the  plaintiffs  in  execution,  let 
them  ferret  out  the  liidden  property  and  ta];e  steps  to 
reach  it,  and  subject  it  to  the  process  of  the  law.  The 
burden  should  be  on  their  shoulders.  They  have  no 
right  to  destroy  the  obvious  intention  of  the  statute  in 
favor  of  the  helpless  and  needy,  when  they  can  so  easily 
reach  the  hidden  or  concealed  property.""  The  debtor's 
claim  for  exemption  cannot  be  successfully  resisted  on 
the  ground  that  he  has  committed  pcrjurj-  in  swearing 
to  a  false  schedule,^  or  has  made  a  fraudulent  mortgage, 
and  has  property  in  another  county  which  has  not  been 
levied  upon,*  or  has  other  property  whicli  he  fraudu- 

*  Moseley  r.  Anderson,  40  Miss.  49;  Uuvall  v.  Rollins,  TIN.  C.  218. 
■•'  Megehe  v.  Drap-.r,  21  Mo.  510;  04  Am.  Dec.  245. 

*  Over  r.  Shannon,  91  Ind.  99. 

*  Baldwin  v.  Talbot,  43  Mich.  11. 


G39  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §215 

lently  conceals  for  the  purpose  of  hindering,  dela3'ing, 
and  defrauding  his  creditors/  Nor  does  an  attempt 
b}'  the  debtor  to  prevent  a  levy  by  disclaiming  all 
interest  in  the  property  and  falsely  representing  it  to 
belong  to  a  third  person  forfeit,  or  estop  him  from  en- 
forcing, his  exemption  rights.^  The  reason  for  this  rule 
has  been  thus  stated:  "The  conduct  and  statements  of 
a  party  never  operate  as  an  estoppel  in  favor  of  another 
party  vrhere  the  latter  is  not  influenced  thereby  in  his 
subsequent  action,  and  to  his  prejudice.  The  fact  that 
respondent  disclaimed  any  ownership  of  the  property 
in  himself,  at  the  time  of  the  levy,  had  no  influence 
whatever  on  the  officer  who  made  it,  for  he  made  it 
notwithstanding  the  disclaimer,  and  afterwards  sold  the 
property.  The  failure  of  respondent  to  interpose  his 
claim  of  exemption  as  to  such  property  at  the  time  of 
the  levy  could  not  work  an  estoppel  against  his  making 
the  claim  subsequently,  for  it  is  neither  found  nor  shown 
that  the  ofiicer  did,  or  omitted  to  d*3,  anything  by  rea- 
son of  such  act  of  omission  of  respondent,  or  that  plain- 
tiffin  the  execution  was  in  any  way  prejudiced  thereby.^ 
If  a  debtor  conveys  his  propert}^  to  delay  or  defraud 
creditors,  he  cannot  sustain  an  action  for  it  as  exempt, 
because  he  has  parted  with  the  title,  and  cannot  urge 
his  own  fraudulent  design  for  the  purpose  of  dc^?ating 
his  deed.*  If,  however,  the  conveyance  should  be  va- 
cated for  fraud,  the  exemption  rights  would  revive. 

§  215.  Consequences  of  Officers  Disregarding 
Claim  for  Exemption. — The  claim  for  exemption, 
wlicn  made  in  du(3  form  and  in  due  time,  may  be  dis- 

'  Elder  V.  Williama,  IG  Nov.  41G. 

»  W;;llij  V.  Truca<lell,  G  Pick.  45.5;  FarrcU  v.  Higley,  Hill  &  D.  87. 

»  McAbi;  V.  Thompson,  27  Minn.  134. 

*  Mandlove  v.  Burton,  1  Cart.  39. 


§-Jlo  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  C40 

regarded  by  the  officer,  who  ma}^  proceed  to  sell  the 
property  as  if  such  claim  had  not  been  made.  When 
he  does  so,  the  question  arises,  What  are  the  conse- 
quences with  respect  to  the  claimant,  the  officer,  and 
the  purchaser  at  the  execution  sale?  The  consequence 
to  the  claimant  is,  that  he  n\ust  vindicate  his  rights  by 
some  a|>proi)riate  form  of  action,  either  common-law  or 
statutm-v.  We  have  the  authority  of  one  case  to  the 
etfect  that  he  may  resist  the  threatened  invasion  of  his 
rights  to  the  extent  of  opposing  the  officer  by  force.^ 
We  apprehend  that  this  is  a  mistaken  view.  Its  main- 
tenance would  make  each  claimant  the  judge  of  the 
merits  of  liis  own  claim,  and  would  lead  to  violence,  and 
even  to  the  loss  of  life.  If  this  sort  of  warfare  is  law- 
ful, we  should  expect  the  history  of  each  county  to  con- 
sist largely  of  the  annals  of  petty  battles  between  the 
debtor  and  his  friends  on  the  one  side,  and  the  officer 
with  the  creditor  and  his  friends  on  the  other,  and  which 
of  the  contestants  should  be  deemed  riotous  criminals, 
and  which  applauded  as  brave  defenders  of  the  law, 
would  depend  upon  the  ultimate  determination  of 
those  numerous  issues  of  law  and  fact  which  attends 
all  litigation  regarding  exemption  rights.  The  conse- 
quences to  the  officer  do  not,  in  our  judgment,  include 
the  right  of  the  claimant  to  challenge  him  to  physical 
combat.  But  he  must  submit  to  legal  combat  of  great 
variety  and  seriousness,  as  we  shall  show  in  the  next 
section ;  and  the  creditor  may  generally  be  joined  with 
him,  and  compelled  to  share  in  the  results.  When  the 
sale  has  taken  place,  the  vital  question  to  the  purchaser 
is,  whether,  notwithstanding  the  sale  of  the  exempt 
property  under  execution,  the  claimant  may  disregard 

1  state  V.  Jolmaon,  12  Ala   840;  46  Am.  Dec.  283. 


641  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §215a 

the  sale  and  recover  the  property  from  the  purchaser. 
As  to  property  exempt  under  the  homestead  laws,  it  is 
perfectly  clear  that  an  execution  sale  against  the  objec- 
tions and  in  defiance  of  the  rights  of  the  claimant  con- 
veys no  title  whatever;^  and  it  seems  to  be  equally 
well  settled  that  this  rule  is  applicable  to  other  exempt 
property.^ 

§  215  a.  Actions  brought  when  the  Debtor's  Claim. 
for  Exemption  is  Denied  are  either  for  the  recovery 
of  the  specific  property  claimed,  or  for  damages  for  its 
conversion  or  detention.  Property  seized  by  an  oflScer 
acting  under  a  writ  from  a  court  of  competent  juris- 
diction is  certainly  thereby  placed  in  tlie  custody  of 
the  law,  if  his  act  can  be  justified  by  the  terms  of  the 
writ.  Though  commanded  to  seize  the  property  of 
the  defendant,  he  may  take  that  of  a  stranger  to  the 
writ,  and  though  directed  to  levy  upon  that  which 
is  subject  to  execution,  he  may,  in  defiance  of  the 
debtor's  protestations,  seize  that  which  is  exempt  from 
execution.  In  either  case  the  question  arises,  Has  the 
act  forbidden  by  law  placed  the  property  in  the  custody 
of  the  law?  If  it  has,  then  it  is  certain  that  the 
property  cannot  be  reclaimed  by  an  independent  action,, 
and  replevin  therefor  does  not  lie.  So  far  as  exempt 
property  is  involved,  the  question  has  received  a  statu- 
tory answer  in  many  of  the  states,  by  the  terms  of 
which  an  aflSdavit  is  exacted  from  the  plaintiff,  to  the 

*  Morris  v.  Ward,  5  Kan.  2.39;  Wing  v.  Hayden,  10  Bush,  27G;  Beccker  u. 
Baldy,  7  Mich.  488;  Voglur  v.  Montgomery,  54  Mo.  577;  Wiggins  v.  Chance, 
54  111.  175;  Hainblin  v.  Warnecke,  .31  Tex.  91;  Abbott  v.  Cromartie,  72  N.  C. 
292;  21  Am.  Rep.  457;  Kendall  v.  Clark,  10  Cal.  17;  20  Am.  Dec.  G91;  Myers 
V.  Ford,  22  Wis.  139. 

*  PaxU.n  r.  Freeman,  G  .1.  .J.  Mar^h.  2.34;  22  Am.  Dec.  74;  Johnson  ^'.  Bab- 
cock,  8  Allen,  583;  Williama  i'.  Miller,  IG  Coim.  144;  Twinan  v.  Swart,  4  Lana. 
2G3. 

Vol.  I.  — 41 


§'215a  OF  rROPERTY   EXEMPT  FROM  EXECUTION.  642 

offcct  that  the  property  lias  not  been  "seized  under 
an  exeeution  or  an  attaeliment  against  the  property  of 
the  plaintiir,  or  if  so  seized,  that  it  is  by  statute  exempt 
from  sueh  seizure."  ^  If  exempt  property  is  seized,  it 
mav,  under  these  statutes,  be  recovered  by  replevin.^ 
That  in  many  instances  there  can  be  no  other  adequate 
remedy  is  beyond  doubt.  Cheap,  worn,  and  even 
dilapidated  articles  of  wearing  apparel,  and  of  house- 
hold furniture,  are  to  the  debtor  and  his  family  of 
value  wcUnigh  inestimable,  while  the  amount  which 
he  can  be  awarded  for  their  conversion  will  rarely 
nun-e  than  repay  the  expenses  of  the  litigation. 
Nevertheless,  if  the  law  be  that  these  chattels  cannot 
be  recovered  in  specie  of  the  officer,  it  must  be  toler- 
ated and  respected  until  modified  by  appropriate  legis- 
lation. That  such  was  the  law  in  the  absence  of  such 
legislation  was  affirmed  by  the  earlier  American  de- 
cisions.^ Most  of  the  later  cases  take  an  opposite 
view,  though  the  courts  were  acting  under  the  common 
law,  or  under  statutes  which  merely  sanctioned  the 
action  of  replevin  when  goods  were  unlawfully  de- 
tained.*    Tlie  action  of  trover  seems   to   have    been 

1  Code  Civ.  Proc.  Cal.,  sec.  510;  Statr.  Mich.,  ed.  1878,  p.  726;  Seney's 
Civ.  Code  Ohio,  sec.  175;  Thompson  and  Stager's  Stats.  Tenn.,  sec.  3376; 
Code  N.  Y.,  sees.  20G,  207;  Rev.  Stats.  Ind.  1S7G,  p.  89,  sec.  133;  2  Dassler's 
Stats.  Kan.,  p.  G76,  sec.  3405;  Rev.  Stats.  S.  C,  ed.  1873,  p.  CJ8,  sec.  230^ 
Rev.  Stats.  Wis.,  ed.  1878,  sec.  2718. 

^  Wilson  V.  Stripe,  4  G.  Greene,  551;  Douch  v.  Rahmer,  Gl  Ind.  64;  Maxon 
r.  Perrott,  17  Mich.  332;  97  Am.  Dec.  191;  Elliott  v.  Whitmore,  5  Mich.  532; 
Samuel  r.  Agnew,  80  III.  55G;  Cooley  v.  Davis,  34  Iowa,  128;  Chapin  v.  Hoel, 
11  111.  App.  309;  Carlson  v.  Small,  32  Minn.  492. 

»  Kellogg  r.  Churchill,  2  N.  H.  412;  9  Am.  Dec.  105;  Gist  v.  Cole,  2  Nott  & 
McC.  4.jG;  10  Am.  Dec.  616;  Spring  v.  Bourland,  11  Ark.  658;  54  Am.  Dec. 
243. 

♦  Mosely  v.  Anderson,  40  Miss.  49;  Ross  v.  Hawthorne,  55  Mi.ss.  551; 
Frazierr.  Dyas,  10  Neb.  115;  35  Am.  Rep.  446;  Wilson  v.  McQueen,  1  Head, 
17;  Harris  v.  Austill,  2  Baxt.  148. 


643  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §215a 

very  rarely  resorted  to  against  officers  for  wrongfully 
taking  and  selling  exempt  chattels/  and  we  have  been 
unable  to  discover  any  case  discussing  its  appropriate- 
ness as  a  remedy  for  the  wrong.  It  certainly  is  an 
appropriate  form  of  action,  for  by  disregarding  the 
claim  of  exemption,  the  officer  is  guilty  of  "  a  conver- 
sion, respecting  which  he  may  be  regarded  as  a  tort- 
feasor from  the  besjinninGf."  ^  There  is  little  doubt 
that,  except  in  Veraiont,^  a  person  denied  his  exemp- 
tion rights  may  successfully  prosecute  an  action  of  the 
case  for  the  injury  done  him.* 

The  one  question,  however,  upon  which  all  the  au- 
thorities agree  is,  that  the  abuse  of  process  of  which 
an  officer  is  guilty  when  he  denies  the  debtor's  ex- 
emption rights  makes  him  a  trespasser  ab  initio,  and 
that  the  debtor  may  properly  seek  redress  in  an  action 
of  trespass ;  ^  but  it  is  said  that  the  officer  is  not  liable 
in  this  form  of  action  if  there  was  any  serious  doubt 
whether  the  property  was  exempt,^  nor  if  the  benefit 
of  exemption  or  selection  was  not  claimed.'^  In  a  state 
like  Pennsylvania,  where  no  specific  property  is  ex- 
empt, and  where  on  demand  it  is  the  duty  of  the 

1  McCoy  V.   Dail,  6  Baxt.   1.37;  Wolfenbarger  v.  Standifer,  3  Sneed,   6G1. 
»  McCoy  V.  Brennan,  61  Mich.  362. 

2  Dow  V.  Smith,  7  Vt.  46.3;  29  Am.  Dec.  202. 

*  Van  Dresor  v.  King,  34  Pa.  St.  201;  75  Am.  Dec.  643;  Spencer  v.  Brighton, 
49  Me.  326;  Perry  v.  Lewis,  49  Miss.  443. 

*  Bean  v.  Hubbard,  4  Cush.  85;  Dow  v.  Smith,  7  Vt.  465;  29  Am.  Dec.  203; 
Leavitt  v.  Metcalf,  2  Vt.  342;  19  Am.  Dec.  718;  Bonnell  v.  Dunn,  28  N.  J.  L. 
153;  Cornelia  v.  Ellis,  11  111.  585;  Wymondv.  Amsbury,  2  Col.  213;  Stephens 
V.  Lawson,  7  Blackf.  275;  Atkinson  v.  Gatcher,  23  Ark.  101;  Hall  v.  Penney, 
11  Wend.  44;  25  Am.  Dec.  601;  State  v.  Johnson,  12  Ala.  840;  46  Am.  Dec. 
283;  Freeman  r.  Smith,  30  Pa.  St.  264;  Wdson  v.  Ellis,  28  Pa.  St.  238;  Van 
Dresor  v.  King,  .34  Pa.  St.  201;  75  Am.  Dec.  643;  State  v.  Moore,  19  Mo.  369; 
56  Am.  Dec.  563;  State  v.  Farmer,  21  Mo.  160. 

«  Trovillo  V.  Shingles,  10  Watts,  438. 

'  State  V.  Morgan,  3  Ired.  186;  38  Am.  Dec.  714;  Frost  v.  Shaw,  3  Ohio 
St.  270. 


§2i:.b  OF  rUOPERTY  EXEMPT  FROM  EXECUTION.  GU 

officer  to  allow  an  oxiMn[)lioii  of  a  specified  value,  tlic 
sole  remedy  of  the  claimant  is  ap^ainst  the  oflicer  for 
damages.^  If  the  judgment  creditor  directs  the  levy 
or  sale,  he  is  liable  to  an  action  e(|ually  with  the  officer.^ 
The  sureties  on  the  oilicial  bond  of  the  oilicer  arc  also 
answerable  for  his  trespass  in  seizing  and  selling  ex- 
empt property.^  In  all  actions  against  officers,  it  is  of 
course  necessary  to  aver  and  prove  all  the  facts  en- 
titling the  party  to  the  exemption,  and  showing  that 
the  otticer  has  knowingly  disregarded  the  claimant's 
rights.*  The  burden  of  proof  is  upon  the  debtor  to  show 
that  he  belongs  to  the  class  of  persons  who  by  the 
statute  are  entitled  to  exemption,  and  that  the  chat- 
tels for  the  takimx  of  which  he  sues  are  such  as  were 
exempt.  In  other  words,  he  is  not  aided  by  any  pre- 
sumption, and  must  offer  evidence  tending  to  prove 
every  fact  essential  to  his  recovery.'^  In  sonae  of  the 
states  an  officer  who  refuses  to  allow  a  defendant  his 
exemption  rights  is  liable  to  criminal  prosecution,  which, 
if  sustained,  will  result  in  his  being  convicted  and  pun- 
ished as  for  a  misdemeanor.^ 

§  215  b.    Measure  of  Damages  and  Right  to  Set-off. 

— When  the  action  is  in  replevin,  the  plaintiff  may,  in 

1  Marks'a  Appeal,  34  Pa.  St.  3G;  75  Am.  Deo.  G31 ;  Hatch  v.  Bartle,  45  Pa. 
St.  IGG;  84  Am.  Dec.  484;  Hammer  v.  Freese,  19  Pa.  St.  255;  Bonsall  v. 
Comly,  44  Pa.  St.  442. 

*  Elder.  V.  Frevert,  5  West  Coast  Rep.  52;  Spencer  v.  Brighton,  49  Me. 
32G;  Atkinson  v.  Catcher,  23  Ark.  101;  Frazier  v.  Syas,  10  Neb.  115;  35  Am. 
Rep.  44G. 

3  State  V.  Moore,  19  Mo.  369;  61  Am.  Dec.  563;  State  v.  Carroll,  9  Mo.  App. 
275;  State  v.  Kenan,  94  N.  C.  29G;  Commonwealth  v.  Stockton,  5  B.  Mon.  192. 

*  Wolfenbarger  v.  Standifcr,  3  Sueed,  659;  Pollard  v.  Thomason,  5  Humph. 
5G;  Figueira  v.  Pyatt,  88  HI.  402. 

'  Alabama  Conference  v.  Vaughn,  54  Ala.  443;  McMasters  v.  Alsop,  85  111. 
157;  Brown  v.  Davia,  9  llun,  43;  Calhoun  v.  Knight,  10  Cal.  393. 
8  SUte  V.  Carr,  71  N.  C.  106. 


645  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §215b 

addition  to  the  property  or  its  value,  recover  interest 
thereon  from  the  time  of  the  wrongful  taking  to  the 
trial, ^  or,  instead  of  interest,  he  may  recover  the  value 
of  the  use  of  the  property  for  the  same  period.^  Where 
the  action  is  in  trespass  or  trover,  the  damages  would 
ordinarily  also  be  the  current  market  value  of  the 
property,  with  interest.  But  the  taking  of  exempt 
property  may  very  properly  give  rise  to  a  claim  for 
exemplary  damages.  In  Michigan  it  has  been  held 
that  the  jury  are  not  at  liberty,  "after  estimating  the 
actual  damages,  to  go  further  and  give  a  further  sum, 
limited  only  by  their  discretion,  by  way  of  punishment 
and  example."  But  the  court  further  said:  "In  some 
cases  the  damages  are  incapable  of  pecuniary  estima- 
tion; and  the  court  performs  its  duty  in  submitting 
all  the  facts  to  the  jury,  and  leaving  them  to  estimate 
the  plaintiff's  damages  as  best  they  may  under  all  the 
circumstances.  In  other  cases  there  may  be  a  partial 
estimate  of  damages  by  a  money  standard,  but  the  in- 
invasion  of  plaintiff's  rights  has  been  accompanied  by 
circumstances  of  peculiar  aggravation,  which  are  calcu- 
lated to  vex  and  annoy  the  plaintiff,  and  cause  him  to 
suffer  much  beyond  what  he  would  suffer  from  the 
pecuniary  loss.  Here  it  is  manifestly  proper  that  the 
jury  should  estimate  the  damages  with  the  aggravating 
circumstances  in  mind,  and  that  they  should  endeavor 
fairly  to  compensate  the  plaintiff  for  the  wrong  he  has 
suffered.  But  in  all  cases  it  is  to  be  distinct!}^  borne 
in  mind  that  compensation  to  the  plaintiff  is  the  pur- 
pose in  view,  and  any  instruction  which  is  calculated 

•  Twinan  v.  Swart,  4  Lans.  263;  Spencer  v.  Brighton,  49  Me.  326. 

*  Elder  V.  Frevort,  18  Nev.  440;  Allen  r.  Fox,  51  N.  Y.  562;  10  Am.  Rep. 
641 ;  C'rabtreo  v.  Clapham,  67  Mc.  .326;  Robbins'.s  Adm'r  v.  Walter,  2  Tex.  130; 
Darby  v.  Cassaway,  2  liar.  &  J.  413;  Butler  v.  Nehring,  15  111.  488. 


§2i:>b  OF  PROPERTY  EXEMPT  FROM   EXECUTION.  643 

to  lo;ul  tliom  to  suppose  that  besides  compensating  the 
plaintiti' they  may  punish  the  defendant  is  erroneous."^ 
In  Minnesota  a  jury  were  instructed  that  if  they 
should  find  that  tlie  defendants,  knowinG^  the  property 
to  be  exempt,  willfully  and  maliciously  attached  the 
same  for  the  purpose  of  harassing  and  oppressing  the 
plaintiff,  then  they  would  not  be  limited  to  the  value 
of  the  projx^rty  and  interest  thereon,  but  they  might 
award  such  damages  to  the  plaintiff  as  they  should 
deem  him  entitled  to  under  the  circumstances.  The 
instruction  was  approved.  As  against  the  objection 
that  there  was  no  evidence  of  such  aggravating  circum- 
stances as  justified  the  instruction,  the  court  replied 
that  if  the  defendants  knew  the  property  to  be  exempt, 
that  was  "an  aofsfravatin-j;;  circumstance  of  the  strong- 
est  character";  that  to  such  seizure  "it  is  impossible 
to  ascribe  any  other  than  a  malicious  motive.  It  was 
a  gross  outrage  upon  the  rights  of  plaintiff,  which  the 
law  does  not  tolerate,  and  justly  allows  damages  by 
way  of  punishment  and  example."^  The  effect  on  a 
jury  of  the  instruction  approved  in  Minnesota,  and 
an  instruction  such  as  that  admitted  to  be  proper  in 
Michigan,  would  be  substantially  identical,  for  each 
would  permit  the  embodiment  in  the  verdict  of  dam- 
ages other  than  pecuniary,  to  wit,  the  damages  arising 
from  the  aggravating  circumstance  of  having  one's 
exempt  chattels  taken  by  one  who  knew  them  to  be 
exempt. 

In  Alabama,  "exemplary  or  vindictive  damages,  as 
they  are  indifferently  termed,  may  also  be  recovered, 
if  the  trespass  is  committed  with  a  bad  motive,  with 

1  Stetson  V.  Gibbs,  53  ]Mich.  280. 

2  Lynd  v.  Picket,  7  Miim.  184;  82  Am.  Dec.  79. 


C47  OF  PROPERTY   EXEMPT  FROM  EXECUTION.  §215b 

an  intent  to  harass  or  oppress  or  injure;  and  the  fact 
that  it  is  wantonly,  recklessly,  or  knowingly  committed, 
is  a  circumstance  indicative  of  malice,  and  proper  mat- 
ter for  the  consideration  of  the  jury."  But  in  that 
state  it  is  the  duty  of  an  officer  to  proceed  to  levy  if 
indemnified  by  the  plaintiff  in  the  writ,  though  he  may 
know  the  property  is  not  subject  to  execution.  He 
therefore  is  not  guilty  of  malice  or  oppression  in  pro- 
ceeding to  levy  on  exempt  property  after  being  directed 
so  to  do  by  plaintiff  and  indemnified  for  proceeding; 
and  it  is  immaterial  that  he  believed  or  knew  the 
property  to  be  exempt.  "If  after  indemnity  he  should 
proceed  to  a  levy,  or  to  execution  of  the  process,  rudely, 
insultingly,  or  in  an  aggravated  manner,  indicative  of 
malice,  or  of  an  intent  to  harass  or  oppress  or  injure, 
he  would  be  answerable  for  vindictive  damages.  A 
bad,  malicious  intent,  in  the  commission  of  a  trespass, 
is  always  proper  matter  for  the  consideration  of  a  jury; 
for  a  man  acting  tortiously,  with  such  an  intent,  ought, 
in  justice,  to  be  dealt  with  more  harshly  than  a  man 
who  acts  ignorantly,  without  such  intent.  But  when 
a  public  officer  is  in  the  line  of  duty,  acting  in  obedience 
to  process,  which  he  cannot  with  safety  refuse  to  execute, 
whatever  may  be  his  information  or  knowledge  of  facts, 
which,  if  proved  in  the  course  of  a  judicial  investigation; 
will  subject  him  to  liability  as  a  trespasser,  it  would 
savor  of  harshness  and  oppression,  if  his  liability  was 
increased  by  the  addition  of  vindictive  damages,  because 
of  such  knowledge  or  information.  Acting  in  good 
faith,  under  instructions  and  indemnity  from  the  party 
controlling  the  process,  who  is  in  pursuit  of  his  supposed 
legal  rights,  if  there  are  no  circumstances  of  aggravation, 
no  facts  indicative  of  a  bad  motive,  nothing  more  than 


§J10.  OF  PROrERTY  EXEMPT  FROM  EXECUTION.  648 

intbrmation  thi*t  tlio  property  is  not  subject  to  the  pro- 
cess, tlio  valiK)  of  the  property  taken,  with  interest  to 
the  time  of  the  trial,  is  tlie  only  reparation  he  can  be 
required  to  make;  this  is  full  eomj>ensalion  to  the  owner, 
luul  all  he  can  in  good  conscience  demand."^  In  some 
of  the  states  the  exemption  rights  of  debtors  are  pro- 
tected by  statutes  allowing  the  damages  to  be  trebled. 
Whore  such  statutes  are  in  force  the  debtor  has  his 
election  to  sue  for  the  penalty  thus  allowed  him,  or  to 
proceed  by  an  ordinary  action  of  trespass.^  If,  in  an 
action  by  a  debtor  to  recover  damages  for  violating  his 
exemption  rights,  the  plaintiff  seeks  to  assert  as  an 
offset  the  judgment  against  the  debtor,  or  any  other 
debt,  such  offset  must  be  denied.  Otherwise  the  ex- 
emption laws  would  be  futile,  for  the  creditor  would 
always  wrongfully  take  the  exempt  property,  and  then 
pay  the  damages  by  pleading  his  judgment,  or  some 
other  debt,  as  an  offset.^ 

§  216.  Agreements  to  Waive  the  Benefit  of  the 
Exemption  Laws  have  been  the  subjects  of  judicial 
discussion  and  decision  in  several  of  the  states.  By 
these  agreements  debtors,  at  the  time  of  incurring  a 
liability,  contract  with  their  debtors  that  they  will 
not,  as  against  any  execution  issued  to  enforce  a  dis- 
charge of  the  liability,  claim  anything  as  exempt.  It 
is  quite  possible  that  such  an  agreement,  if  made  by  a 
single  man, —  one  who  had  no  one  but  himself  to  suffer 
for  his  improvidence, — would  be  generally  sustained. 
In   Pennsylvania   it  would   be   enforced   against   the 

>  Alley  ?•.  Daniel,  75  Ala.  408. 

2  Amend  v.  Muq^hy,  G9  111.  .337;  Wymond  v.  Amabury,  2  CoL  213;  Shear 
V.  Reynolds,  90  111.  238. 

»  See  §  235;  MuUikea  v.  Winter,  2  Duv.  256;  87  Am-  Dec  495. 


&49  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §216 

debtor,  whether  the  head  of  a  family  or  not;^  but  it 
does  not  deprive  him  of  the  right  to  claim  exemptioa 
as  against  other  liabilities.^ 

The  reasons  for  the  rule  as  laid  down  in  Penns}^- 
vania  are  thus  stated  in  one  of  the  leading  cases  on 
this  topic:  "When  at  the  time  of  contracting  the  debt 
he  (the  debtor)  agrees  to  waive  the  benefit  of  the  ex- 
emption,—  and   this  forms  the  ground  of  the  credit 
given  him,  —  the  injustice  of  permitting  him  to  violate 
his  contract,  and  thus  to  defraud  his  creditor,  is  too 
palpable  to  need  illustration,  or  to  require  the  aid  of 
precedents  to  discountenance  it.     Notwithstanding  the 
benevolent  provisions  of  the  statute  in  favor  of  un- 
fortunate and  thoughtless  debtors,  it  was  far  from  the 
intention  of  the  legislature  to  deprive  the  free  citizens 
of  the  state  of  the  right,  upon  due  deliberation,  to  make 
their  own  contracts  in  their  own  w^ay  in  regard  to  secur- 
ing the  payment  of  debts  honestly  due.     Creditors  are 
still  recognized  as  having  some  rights;  and  it  is  not  the 
intention  of  the  legislature  to  destroy  them  by  impair- 
ing the  obligation  of  contracts.     It  frequently  happens 
that  the  creditor  is  more  in  need  of  public  sympathy 
than  the  debtor.     When  a  poor  man  is  unjustly  kept 
out  of  money   due  to  him,  the  distress  arising  from 
the  want  of  it  is  often  greater  thati  that  caused  to  the 
other  party  by  its  collection.     If  the  suffering  was  but 
equal,  it  is  plain  that  one  man  should  not  suffer  for 
the  follies  or  misfortunes  of  another;  every  one  should 
bear  his  own  burden.    The  stiitute  which  exempts  debt- 
ors from  the  operation  of  this  principle  did  not  take 

'  Bowman  v.  Smiley,  31  Pa.  St.  22.3;  72  Am.  Dec.  738;  Smiley  v.  Bowman, 
3  Grant  Caa.  132;  Case  r.  Dunmore,  23  Pa.  St.  93;  Shelley's  Appeal,  30  Pa.  St. 
373;  see  Dow  v.  Cheney,  103  iMass.  181. 

»  Thoinaa'a  Appeal,  GO  Pa.  St.  120. 


§-21G  OF  rROPERTY  EXEMPT  FROM  EXECUTION.  C50 

away  innn  thoni  tlio  rii^-lit  ti>  waivo  tliw  privilege  thus 
contrrroil  wluMiovor  tlu'ir  consciences  or  tlieir  necessi- 
ties prompted  the  waiver."  '     The  constitution  of  Ala- 
bama, in  section  1  of  article  10,  declares  that  "the  per- 
sonal pri>pei-ty  of  any  resident  of  this  state,  to  the  value 
of  one  thousand  dollars,  to  be  selected  by  such  resident, 
shall  be  exempted  from  sale  on  execution  or  other  pro- 
cess of  any  court  issued  for  the  collection  of  any  debt 
contracted  since  the  thirteenth  day  of  July,  18G8."    By 
st^^ction  7  of  the  same  article,  "the  right  of  exemptions 
hereinbefore  secured  may  be  waived  by  an  instrument 
in  writing;  and  when  such  waiver  relates  to  realty,  the 
instrument  must  be  signed  by  both  the  husband  and 
wife,  and  attested  by  one  witness."     The  operation  of 
this  provision  in  the  fundamental  law  of  the  state  is 
necessarily  to  authorize  a  waiver  of  all  chattel  exemp- 
tions to  be  made  in  writing.^     A  waiver  of  all  exemp- 
tions signed  by  the  husband  alone,  though  invalid  as 
against  the  homestead,  is  valid  as  against  all  chattel  ex- 
emptions.^    "The  intention  to  make  such  waiver  must 
be  clearly  expressed."     A  written  expression  is  essen- 
tial ;  hence  a  verbal  mortgage  against  exempt  property 
is  not  enforceable.*     Under  the  statutes  of  Kansas,  "a 
tenant  may  waive  in  writing  the  benefit  of  the  exemp- 
tion laws  of  the  state  for  all  debts  contracted  for  rents." ^ 
The  courts  of  Pennsylvania,  which  we  believe  are  the 
only  ones  which  have  sanctioned  prospective  waivers 
of  exemption  rights,  unless  compelled  to  do  so  by  stat- 
utory or  constitutional  provision,  have  repented  of  their 

1  Case  V.  Duninore,  23  Pa.  St.  94;  Adams  v.  Bachert,  83  Pa.  St.  524;  White 
Deer  Overseer's  Ai-peal,  95  Pa.  St.  191;  Spitluy  v.  Frost,  5  McCrary,  49. 
•■'  Brown  v.  Leitch,  60  Ala.  314;  31  Am.  Rep.  42. 
»  Neely  r.  Henry,  G3  Ala.  261;  Wagnon  v.  Keenan,  07  Ala.  519. 
*  Knox  V.  VViLjon,  77  Ala.  309. 
'  Hoiaintjton  v.  Huff,  24  Kan.  379. 


651  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §216 

folly.  A  statute  of  that  state  passed  in  1845  declared 
that  "  the  wages  of  any  laborers,  or  the  salary  of  any 
person  in  public  or  private  employment,  shall  not  be 
liable  to  attachment  in  the  hands  of  the  employer."  A 
laborer  executed  a  note  containing  a  waiver  of  all  ex- 
emption laws  in  force  in  the  state.  In  refusing  to 
enforce  such  waiver,  the  supreme  court  of  the  state 
said:  "If  it  were  res  integra;  if  with  the  experience 
and  observation  we  have  had  we  were  now  for  the  first 
time  to  pass  upon  the  question  whether  debtors  could 
waive  their  riohts  under  the  act  of  1849,  or  widows 
theirs  under  the  act  of  14th  of  April,  1851, — we  would 
be  very  likely  to  deny  it  altogether,  and  stick  to  the 
statutes  as  they  are  written.  And  here  we  have  a 
new  case.  We  have  never  decided  that  a  debtor  may 
repeal  the  proviso  of  the  act  of  1845,  and  public  policy 
pleads  strongly  against  such  a  decision.  If  we  make 
it,  we  bring  on  the  litigation  which  has  sprung  out  of 
our  decision  upon  the  act  of  1849,  —  the  inconveniences 
to  employers  before  adverted  to,  and  the  temptation 
to  weak  debtors  to  beggar  their  families  in  behalf  of 
sharp  and  grasping  creditors.  We  will  not,  there-^ 
fore,  strain  the  proviso  to  fit  it  to  our  construction  of 
the  exemption  statutes,  but  will  leave  it  to  its  natural 
operation  as  it  is  expressed.  The  legislature  having 
said  that  justices  shall  not  attach  wages,  we  will  say 
they  shall  not,  though  a  particular  debtor  has  said 
they  may.  It  is  to  be  observed  that  the  garnishee 
has  rights  in  the  premises,  and  he  is  under  the  act  of 
assembly,  but  is  not  a  party  to  the  agreement  which 
his  laborer  makes  with  a  creditor.  Why  should  he  be 
armoyed  and  subjected  to  costs,  his  work  hindered,  and 
his  hands  deprived  of  their  daily  bread,  by  an  agree- 


§21G  OF  TROPERTY  EXEMPT  FROM  EXECUTIOI^.  652 

mont  between  others  to  wliieli  he  was  not  a  party,  and 
of  which  he  had  no  notice?  Why  should  such  an  agree- 
ment be  made  a  rule  of  law  to  garnishees,  instead  of  a 
statute  which  they  knew  of  when  they  made  their  busi- 
ness arrangements  and  employed  their  laborers,  and 
which  they  had  a  right  to  expect  would  be  adminis- 
tered as  it  is  written?"^ 

In  the  other  states,  where  no  statutory  or  constitu- 
tional provision  has  been  enacted  or  adopted,  autlior- 
izinir  asfreements  waivino;  the  ricjlit  to  claim  the 
exemption  of  property  from  execution,  such  agreements 
are  treated  as  against  public  policy,  and  arc  declared 
void.  The  reasons  for  thus  treating  them  are  well  and 
conclusively  stated  by  Denio,  J.,  in  an  opinion  pro- 
nounced in  the  New  York  court  of  appeals.  He  said : 
"The  statutes  which  allow  a  debtor,  being  a  house- 
holder and  having  a  family  for  which  he  provides,  to 
retain,  as  against  the  legal  remedies  of  his  creditors, 
certain  articles  of  prime  necessity,  to  a  limited  amount, 
are  based  upon  views  of  policy  and  humanity,  which 
would  be  frustrated  if  an  a^Teement  like  that  contained 
in  these  notes,  entered  into  in  connection  with  the 
principal  contract,  could  be  sustained.  A  few  words 
contained  in  any  note  or  obligation  would  operate  to 
change  the  law  between  those  parties,  and  so  far  dis- 
a|)point  the  intentions  of  the  legislature.  If  effect 
shall  be  given  to  such  provisions,  it  is  likely  that  they 
will  generally  be  inserted  in  obligations  for  small 
demands,  and  in  that  way  the  policy  of  the  law  will 
be  completely  overthrown.  Every  honest  man  who 
contracts  a  debt  expects  to  pay  it,  and  believes  he  will 
be  able  to  do  so  without  having   his  property  sold 

1  Firmatone  v.  Mack,  49  Pa.  St.  387;  88  Am.  Dec.  507. 


653  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §216 

under  execution.  No  one  worthy  to  be  trusted  would, 
therefore,  be  apt  to  object  to  a  clause  subjecting  all  his 
property  to  levy  on  execution  in  case  of  non-payment. 
It  was  against  the  consequences  of  this  over-confi- 
dence, and  the  readiness  of  men  to  make  contracts 
whicli  may  deprive  them  and  their  families  of  articles 
indispensable  to  their  comfort,  that  the  legislature  has 
undertaken  to  interpose.  When  a  man's  last  cow  is 
taken  on  an  execution  on  a  judgment  rendered  upon 
one  of  these  notes,  it  is  no  answer  to  say  that  it  was 
done  pursuant  to  his  consent,  freely  given,  when  he 
contracted  the  debt.  The  law  was  designed  to  protect 
him  against  his  own  improvidence  in  giving  such  con- 
sent. The  statutes  contain  many  examples  of  legisla- 
tion based  on  the  same  motives.  The  laws  against 
usury,  and  those  which  forbid  imprisonment  for  debt, 
and  those  which  allow  a  redemption  after  the  sale  of 
land  on  execution,  are  of  this  class.  So  of  the  principle 
originally  introduced  by  courts  of  equity,  and  which 
has  been  long  established  in  all  courts,  to  the  effect  ^ 
that  if  one  convey  land  as  security  for  a  debt,  and 
agree  that  his  deed  shall  become  absolute  if  payment 
is  not  made  by  the  day,  he  shall  be  entitled  to  redeem 
on  paying  the  debt  and  interest;  and  so  also  of  execu- 
tory contracts  without  consideration  to  make  gifts,  and 
the  like.  In  these  cases,  the  law  seeks  to  mitigate  the 
consequences  of  men's  thoughtlessness  and  improvi- 
dence ;  and  it  does  not,  I  think,  allow  its  policy  to  be 
evaded  by  any  language  which  may  be  inserted  in  the 
contract.  It  is  not  always  equally  careful  to  shield 
persons  from  those  acts  which,  instead  of  being  prom- 
issory in  thoir  character  and  prospective  in  their  opera- 
tion, take  effect  immediately.     One  may  turn  out  his 


§-:iG  OF  TROrERTY  EXEIMPT  FROM  EXECUTION.  654 

last  COW  on  oxceution,  or  may  release  an  equity  of 
redemption,  and  he  will  be  bound  by  the  act.     In  thus 
discriminatinijc,  the  law  takes  notice  of  the  readiness 
Avith  which   saniruine  and   incautious   men  will   make 
improvident   contracts  which   look  to  the    future    for 
their  consummation,  when,   if  the  results  were  to  be 
presently  realized,  they  would  not  enter  into  them  at 
all.      If,    with    the    consequences   immediately    before 
them,  they  will  do  the  act,  they  will  not  generally  be 
allowed  to  retract;   it  being  supposed,  in  such  cases, 
that  valid   reasons  for  the  transaction  may  have  ex- 
isted, and  that,  at  all  events,  the  party  was  not  under 
the  illusion  which  distance  of  time  creates.     Ordinarily, 
men  are  held  to  their  executory  as  well  as  their  exe- 
cuted contracts;  but  in  a  few  exceptional  cases,  where 
the  temptation  is  great,  or  the  consequences  peculiarly 
inconvenient,  parties  are   not  allowed  to   make  valid 
prospective  agreements.     The  present  is,  in  my  opin- 
ion, one  of  those  cases."  ^     So  the  court  of  appeals  of 
Kentucky,    in   a   recent    decision,    said:    "Executory 
agreements  are  generally  enforced,  and  as  much  obliga- 
tory on  parties  as  if  in  fact  executed;  but  there  are 
exceptions  to  this  general  rule.     No  one  in  this  state 
is  entitled  to  the  benefit  of  the  exemption  laws  but  a 
housekeeper  with  a   family;  and  the   legislature  cer- 
tainly intended   by  the  enactment   of  such   laws   to 
provide  more  for  the  dependent  family  of  the  debtor 
than  for  the  debtor  himself     Every  honest  man  has  a 
desire  to  fulfill  all  his  obligations,  and  such  are  always 
willing  to  comply  with  the  demands  of  a  creditor,  by 
giving  to  the  latter  any  assurance  he  may  exact  as  evi- 
dence of  his  intention  to  pay  his  debt.     The  law  in  its 

1  Kneettle  v.  Necomb,  22  N.  Y.  249;  78  Am.  Dec.  186. 


655  OF  PROPERTY   EXEMPT  FROM  EXECUTION.  §217 

wisdom  for  the  poor  and  needy  has  said  that  certain 
property  shall  not  be  hable  for  debt,  not  so  much  to 
reheve  the  debtor  as  to  protect  his  family  against  such 
improvident  acts  as  reduce  the  family  to  want.  Such 
is  the  policy  of  the  law;  and  this  contract  was  made 
not  only  in  diregard  of  this  policy,  but  to  annul  the 
law  itself,  so  far  as  it  affected  the  debt  sought  to  be 
recovered.  If  such  a  contract  is  upheld,  the  exemp- 
tion law  of  the  state  would  be  a  blank  upon  the  stat- 
ute-book, and  deprive  the  destitute  of  all  claim  they 
have  to  its  beneficent  provisions."^  "Such  contracts 
contravene  the  policy  of  the  law,  and  hence  are  inoper- 
ative and  void.  The  owner  may,  if  he  chooses,  sell  or 
otherwise  dispose  of  any  property  he  may  have,  how- 
ever much  his  family  may  need;  but  the  law  will  not 
aid  him  in  that  regard,  nor  permit  him  to  contract,  in 
advance,  his  creditor  may  use  the  process  of  the  courts 
to  deprive  his  family  of  its  benefit  and  use,  when  an 
exemption  has  been  created  in  their  favor.  Laws  en- 
acted from  considerations  of  public  concern,  and  to 
subserve  the  general  welfare,  cannot  be  abrogated  by 
mere  private  agreement."^ 

§  217.    The  Liabilities  against  Which  the  Benefit 

of  an  exemption  law  may  be  claimed  are  to  be  discov- 
ered, first,  by  the  inspection  of  the  statute,  and  next, 
by  considering  whether  the  statute  is  liable  to  any  con- 
stitutional objection.     In   several    of  the    states,   the 

iMoxley  v.  Ragan,  10  Bush,  156;  13  Am.  Law  Reg.,  N.  S.,  743;  19  Am. 
Rep.  61;  Crawford  v.  Lockwood,  9  How.  Pr.  547;  Maxwell  v.  Reed,  7  Wis. 
582;  Levicks  v.  Walker,  15  La.  Ami.  245;  9  Am.  Law  Reg.  112;  Curtis  v. 
OBrieii,  2J  Iowa,  376;  8!)  Am.  Dec.  543;  Harper  v.  Leal,  10  How.  Pr.  282. 

^Recht  V.  Kelly,  82  111.  147;  25  Am.  Rep.  301;  Carter  v.  Carter,  20  Fla. 
558;  51  Am.  Rep.  618;  Phelps  ?-.  Pliclps,  72  111.  545;  22  Am.  Rep.  149;  Branch 
V.  Tomliiison,  77  N.  C.  8;  Van  Wickle  v.  Laudry,  29  Wis.  388;  Denny  v. 
White,  2  Cold.  283;  88  Am.  Dec.  596. 


§•217  OF  TROrEKTY  EXEMPT  FHOM  EXECUTION.  656 

privilege  of  exemption  can  be  asserted  only  against 
judgments  founded  in  contract,  and  not  against  judg- 
ments founded  in  tort.^  Ileuce  in  these  states  there 
is  no  chattel  exemption  against  a  judgment  in  eject- 
ment for  damages  for  tlie  unlawful  withholding  of 
real  estate,  nor  can  parol  evidence  bo  received  to  show, 
in  opposition  to  the  record,  that  the  judgment  was  of 
the  class  against  which  the  exemption  was  allowable.^ 
If  the  judgment  against  the  husband  is  for  damages 
occasioned  by  the  tort  of  his  wife,  his  liability  is  re- 
garded as  founded  on  tort,  and  not  in  the  contract 
of  marriage,  and  he  is  not  entitled  to  any  exemption.^ 
A  judgment  for  the  amount  of  a  statutory  penalty, 
as  where  a  recovery  is  had  for  the  penalty  given  by 
statute  against  a  mortgagee  for  failure  to  acknowledge 
on  the  record  the  satisfaction  of  his  mortgage,  is  not 
founded  on  contract,  and  therefore  not  subject  to  chat- 
tel exemptions/  Costs  are  but  an  incident  to  the 
judfi'ment,  and  so  far  as  exemptions  are  concerned,  must 
be  treated  as  of  the  same  nature  as  the  judgment. 
Hence  if  the  plaintiiF  recovers,  the  costs  are  included 
in  and  become  a  part  of  his  judgment,  and  the  exemp- 
tion does  not  prevail  against  him.^  The  rule  is  the 
same  where,  in  an  action  for  an  alleged  tort,  the  plain- 
tiff fails,  and  the  defendant  recovers  judgment  for  his 

1  Kenyon  v.  Gould,  61  Pa.  St.  292;  Commonwealth  v.  Dougherty,  28  Leg. 
Int.  14;  Lane  v.  Baker,  2  Grant  Cas.  424;  State  v.  Melogue,  9  Iml.  190; 
Lauck's  Appeal,  24  Pa.  St.  428;  Massie  v.  Eayart,  33  Ark.  688.  This  rule 
was  applied  to  homestead  exemptions  in  Robinson  v.  Wiley,  15  N.  Y.  489; 
Cook  V.  Newman,  8  How.  Pr.  523;  Latlirop  v.  Singer,  30  Barb.  390;  Davis  v. 
Henson,  29  Ga.  345.  It  is  doubtful  whether  costs  are  to  be  regarded  as  a  de- 
mand growing  out  of  contract.     In  re  John  Owens,  7  Chic.  L.  N.  371. 

2  Smith  V.  Wood,  83  lud.  522. 

3  McCabe  v.  Bergc,  89  Ind.  225. 

*  Williama  v  Bowden,  69  Ala.  433. 

^  Massie  v.  Eayart,  33  Ark.  688;  State  v.  Mcintosh,  100  lud.  439;  Church 
V.  Hay,  93  Ind.  323. 


657  OF  PROPERTY  EXEMPT  FROM  EXECUTTOlSr.  §217 

costs/  111  other  states  the  privilege  of  exemption  is 
available  against  an  execution  founded  on  a  judgment 
for  tort,  or  on  a  judgment  against  a  defendant  in  a 
criminal  prosecution,  as  against  an  execution  for  a  con- 
tract liability.^  In  Arkansas  the  action  for  use  and 
occupation  "  is  in  all  respects  of  the  nature  of  assump- 
sit at  common  law  on  an  implied  promise,  and  is  an 
action  ex  contractu,  and  not  ex  delicto."  The  judgment 
recovered  in  such  action  is  subject  to  all  exemption 
privileges.^  In  Kansas  the  personal  property  of  the 
debtor  is  not  exempt  as  against  the  claim  of  a  clerk,, 
mechanic,  laborer,  or  servant,  for  wages;*  while  in 
Minnesota  it  was  determined  that  the  lecrislature  was 
prohibited  from  making  a  like  exception  in  the  exemp- 
tion statute,  under  a  constitution  commanding  that  a. 
certain  portion  of  the  property  of  the  debtor  be  ex- 
empt from  all  debts.^ 

It  has  been  held  that  the  state  cannot  be  affected 
by  exemption  laws,  unless  the  intention  to  so  aftect  it 
is  declared  by  the  statute  in  express  terms,^  and  this, 
ruling  is  certainly  sustained  by  a  rule  whose  existence 
and  propriety  was  always  affirmed  by  the  common  law, 
to  wit,  "that  in  the  construction  of  statutes  declaring- 
or  affecting  rights  and  interests,  general  ^^•ords  do  not 
include  the  state,  or  affect  its  rights,  unless  it  be  spe- 
cially named,  or  it  be  clear,  by  necessary  implication, 
that  the  state  was  intended  to  be  included."^     The 

1  RusselU'.  Cleary,  105  Ind.  502. 

*  This  rule  was  applied  for  the  purpose  of  exempting  homesteads,  in  Loomis 
V.  Gerson,  62  111.  11;  Conroy  v.  Sullivan,  44  III.  451;  Smith  v.  Ormans,  17  Wis. 
395;  Dellinger  v.  Twend,  OG  N.  C.  206. 

«  St.  L.,  I.  M.  &  S.  R'y  Co.  v.  Hart,  38  Ark.  112. 

*  Reed  v.  Umbarger,  11  Kan.  200;  McBridev.  Rcitz,  19  Kan.  123. 
'  Tuttle  V.  Strout,  7  Minn.  465;  82  Am.  Dec.  108. 

*  Commonwealth  v.  Cook,  8  Bush,  220;  8  Am,  Rep.  450. 
'  Cole  ?;.  White  County,  32  Ark.  51. 

Vol.  I.  — 42 


§•-'17     OF  PROPERTY  EXEMPT  FROM  EXECUTION.      G53 

weiglit  of  the  decisions,  however,  at  the  present  time 
is,  that  as  the  object  of  these  laws  is  to  secure  to  the 
poorest  and  most  numerous  class  of  the  community 
the  means  of  support,  the  state  is  within  the  policy  of 
its  own  legislation  upon  this  subject-matter,  and  is 
therefore  bound  by  these  laws,  and  cannot  enforce  its 
claims  against  the  exemptions  therein  granted,^  except 
upon  the  same  cause  of  action,  against  which  a  claim 
of  exemption  would  be  unavailing,  if  the  judgment 
were  in  favor  of  a  private  person.^  It  is  now  settled 
that  the  right  to  exemption  exists  against  judgments 
in  favor  of  the  United  States.  After  referring  to  the 
various  statutes  upon  the  subject  of  writs  of  execution 
from  the  national  courts,  the  supreme  court  announced 
the  following  conclusion:  "It  is  further  to  be  observed 
that  no  distinction  is  made  in  any  of  these  statutes  on 
the  subject  between  executions  on  judgments  in  favor 
of  private  parties,  and  on  those  in  favor  of  the  United 
States.  And  as  there  is  no  provision  as  to  the  effect  of 
executions  at  all,  except  as  contained  in  this  legislation, 
it  follows  necessarily  that  the  exemption  from  levy  and 
sale,  under  executions  of  one  class,  apply  equally  to 
all,  including  those  on  judgments  recovered  by  the 
United  States."^  Property  is  generally,  and  we  be- 
lieve universally,*  subject  to  an  execution  for  the  pur- 
chase  price  thereof^      A  judgment  for    the  conver- 

^Gladney  v.  Deavors,  11  Ga.  79;  State  v.  Willifonl,  36  Ark.  155;  38  Am. 
Rep.  34;  State  v.  Pitts,  51  Mo.  133;  Conroy  v.  Sullivan,  44  111.  451;  Loomis  v. 
Gerson,  52  111.  13;  Commonwealth  v.  Lay,  12  Bush,  283. 

*  Vincent  v.  State,  74  Ala.  274. 
»  Fink  V.  O'Neil,  lOG  U.  S.  279. 

*  Friedman  v.  Sullivan,  2  S.  W.  Rep.  785;  Behymer  v.  Cook,  5  Col.  395; 
Rodgers  v.  Brackett,  34  Me.  279. 

"  For  application  of  this  rule  to  homestead  cases,  see  Montgomery  v.  Tutt, 
11  Cal.  190;  Skinner  v.  Beatty,  IG  CaL  156;  McGhee  v.  Way,  46  Ga.  282; 
Kitchell  V.  Burg  win,  21  IlL  40;  Phelps  v.  Connover,  25  111.  309;   Barnes  v. 


659  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §217 

sion  of  goods  is  not,  it  is  said,  within  the  benefit  of 
this  rule. ^  It  has  been  held  that  the  judgment  must 
be  in  favor  of  the  vendor,  and  therefore  that  the  trans- 
feree of  a  note  given  for  purchase-money  has  no  immu- 
nity from  the  claim  for  exemption.^  So  if  the  vendee 
transfers  the  property,  it  is  no  longer  subject  to  levy 
under  a  judgment  against  the  vendee  for  purchase- 
mone}^^  A  judgment  is  not  for  the  purchase-money, 
unless  it  is  against  the  purchaser,*  and  is  based  upon 
the  contract  made  between  the  vendor  and  the  vendee. 
Hence  one  who  has  become  a  surety  for  the  purchaser, 
and  has  been  compelled  to  pay  the  purchase  price,  can- 
not, on  recovering  against  the  purchaser,  seize  property 
exempt  from  execution.^  The  contract  of  the  pur- 
chaser's surety  is  not  a  contract  for  the  payment  of 
purchase-money  within  the  meaning  of  the  statutes  of 
exemption.^  The  judgment  must  be  exclusively  for 
purchase-money.  If  other  items  of  indebtedness  are 
included,  the  right  to  take  exempt  property  is  waived.^ 
**The  principle  to  be  deduced  from  the  cases  is,  that 
when  a  creditor  has  two  classes  of  claims  ag^ainst  his 
debtor,  by  uniting  them  in  one  suit,  and  obtaining 
judgment,  he  reduces  that  in  which  his  rights  are  su- 
perior to  a  level  with  that  in  which  they  are  inferior.® 
Where  wages  are  exempt,  except  in  a  suit  for  neces- 

Gay,  7  Iowa,  2G;  Pratt  v.  Topeka  Bank,  12  Kan.  570;  Stevens  v.  Stevens,  10 
Allen,  14G;  87  Am.  Dec.  630;  Buckingham  v.  Nelson,  42  Miss.  417;  Ulrich'a 
Appeal,  48  Pa.  St.  489;  Fehley  v.  Barr,  66  Pa.  St.  196;  Burford  t-.  Rosenfield, 
37  Tex.  42;  Perriu  v.  Serjeant,  3.3  Vt.  184. 

1  Iloyt  V.  Van  Alstyne,  15  Barb.  568. 

2  Shcpard  v.  Cross,  33  Mich.  96. 

3  Haworth  v.  Franklin,  74  Mo.  106. 

♦  Buckingham  v.  Nelson,  42  Miss.  417. 

'  Harley  v.  Davis,  16  Minn.  487. 

8  Davis  V.  Peahody,  10  Barb.  91;  Smith  v.  Slade,  57  Barb.  637. 

T  Ilickox  V.  Fay,  36  Barb.  9. 

8  Uolmes  V.  Farris,  63  Me,  318. 


§C1S  OF  PROPERTV  EXEMPT  FROM   EXECUTION.  GGO 

sarios,  they  arc  cxcnij>t  in  an  action  on  a  jucli^nicnt  for 
necossaries.  By  tliu  jiulL^nient  in  the  iirst  action,  the 
old  (.lebt  is  merited  or  cxtinmiishetl.  The  nature  of 
the  security  i^^  changed.  An  action  on  such  judgment 
"is  not  for  necessaries  furnished  within  the  meaning 
of  the  statute."  ^  A  judgment  for  the  purchase  price 
of  one  article  seems,  in  New  York,  to  authorize  the 
taking  of  other  exemj^t  property. '^  Under  an  execu- 
tion for  the  purchase  price  of  a  homestead,  the  debtor's 
crop  raised  thereon,  if  otherwise  exempt,  is  not  sul)ject 
to  execution.^  In  some  of  the  states  a  homestead  is 
not  exempt  from  an  execution  based  on  a  debt  which 
accrued  prior  to  its  purchase*  or  occupancy.^ 

§  218.  Exempt  Property  may  be  Sold  or  Pledged. 
—  Tlie  power  of  the  owner  of  exempt  property,  unless 
limited  by  statute,  to  sell  or  encumber  is  undoubted.® 
The  right  of  exemption  is  a  privilege,  but  not  a 
restraint.  In  fact,  the  owner's  power  to  dispose  of 
exempt  property  is  more  absolute  than  it  is  over  other 
kinds  of  property.  This  is  because  of  the  freedom  of 
exempt  property  from  involuntary  liens.  Not  being 
subject  to  execution,  the  owner  may  sell  it,  pledge  it, 
or  give  it  away,  notwithstanding  the  existence  of  judg- 
ment or  execution  liens,  and  without  reference  to  the 
rights  of  his  general  creditors.^     In  some  of  the  states 

*  Brown  v.  West,  73  Mc.  23. 

'  Cole  r.  Stevens,  9  Barb.  G7G;  Snyder  v.  Davis,  47  How.  Pr.  147;  1  Hun, 
350;  Craft  v.  Curtiss,  25  How.  Pr.  1G3;  contra,  Hickox  r.  Fay,  36  Barb.  9. 
^  .Johnson  v.  Holmes,  49  Ga.  3G5. 

*  Laing  v.  Cunningham,  17  Iowa,  510;  Tucker  v.  Drake,  11  Allen,  145; 
BrainarJ  v.  Van  Kuran,  22  Iowa,  261.     See  §  249. 

*  Hale  V.  Hcaslip,  IG  Iowa,  451;  Hyatt  v.  Spearman,  29  Iowa,  510;  Delevan 
V.  Prjitt,  19  Iowa,  429. 

*  Jones  V.  Scots,  10  Kan.  33;  Bevan  v.  Hayden,  13  Iowa,  127. 

'  Pool  r.  Reid,  15  Ala.  82G;  Godman  v.  Smitli,  17  Ind.  1.j2;  Vandibur  v. 
Love,   10  Ind.  54;  Finley  v.  Sly,  44  Ind.  2GG;  Paxtou  v.   Freeman,  G  J.  J. 


G61  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §  21S 

this  rule  is  not  applicable  to  homesteads.  In  these 
states,  judgment  liens  were  held  to  apply  to  home- 
stead, so  that  the  alienee  of  a  homestead  estate  held  it 
subject  to  sale  under  judgments  against  his  grantor.^ 
But  except  under  statutes  clearly  indicating  that  such 
is  to  be  the  case,  there  is  no  reason  why  homesteads 
should  form  an  exception  to  the  general  rule  that 
exempt  property  may  be  transferred  free  of  all  judg- 
ments and  executions  which  were  not  enforceable 
against  the  property  in  the  hands  of  the  vendor.^ 
Some  limitations  in  the  power  of  a  debtor  to  dispose 
of  his  exempt  property  have  been  imposed  by  statute. 
Thus  in  Ohio  a  married  man  is  prohibited  from  sell- 
ing, disposing  of,  or  in  any  manner  parting  with  any 
personal  property  exempt  from  sale  under  execution, 
without  first  obtaining:  the  consent  of  his  wife.  Should 
he  violate  this  statute,  his  wife  may,  in  her  own  name, 
prosecute  to  final  judgment  a  civil  action  for  the 
recovery  of  the  property  or  the  value  in  money.^ 
In  Indiana,  after  real  property  has  been  selected  as 
exempt,  and  has  been  appraised,  and  set  apart  to  the 
debtor,  it  can  no  longer  be  sold  by  him  except  by  a 
deed  in  which  his  wife  unites  with  him,  acknowledged 
in  due  form  of  law.'^     Owing  to  some  ambiguity  in 

Marsh.  2.34;  22  Am.  Dec.  74;  Jones  v.  Scott,  10  Kan.  33;  Cook  v.  Bainc,  37 
Ala.  350;  Denny  v.  White,  2  Cold.  283;  88  Am.  Dec.  597;  Smith  v.  Allen,  39 
Miss.  409;  Moaeley  v.  Anderson,  40  Miss.  49;  Buckley  v.  Wheeler,  52  Mich. 
1;  Frost  v.  Shaw,  3  Ohio  St.  270;  Vaughan  v.  Thompson,  17  111.  78;  ante; 
§  197;  Kulage  v.  Schueler,  7  Mo.  App.  250;  Barnard  v.  Brown,  112  Ind.  53. 

'  Hoyt  V.  Howe,  3  Wis.  752;  Folsom  v.  Carli,  5  Minn.  335;  80  Am.  Dec 
429;  Tillotsonr.  Millard,  7  Minn.  513;  82  Am.  Dec.  112;  Smith  v.  Brackett, 
36  Barb.  571. 

^  Monroe  v.  May,  9  Kan.  475;  Freeman  on  Judgments,  sec.  355;  Morris  v. 
Ward,  5  Kan.  247;  Lamb  r.  Shays,  14  Iowa,  567;  Wiggins  v.  Chance,  45  111. 
175. 

»  Slanker  v.  Beardsley,  9  Ohio  St.  689. 

*  Sullivan  v.  Winalow,  22  Ind.  153. 


§•219  OF  TROrERTY   EXEMPT  FROM  EXECUTION.  GG2 

exemption  statutes,  whereby  they  ]nirpoi'tetl  to  exempt 
certain  chattels  from  t'oreed  sale  uiitler  execution,  it  has 
often  been  insisted  that  a  mortii'aLre  thereof  is  invalid 
because  it  cannot  be  enforced  otherwise  than  by  a 
forced  sale.  The  courts  have,  with  substaiitial  uni- 
formity, denied  the  claim,  and  held  that  the  mortgage 
was  valid,  and  that  its  foreclosure  was  not  one  of  the 
forced  sales  against  which  the  statute,  provided.  To 
this  extent  there  may  be  a  valid  prospective  waiver  of 
exemption  rights.^  Under  the  statute  of  Ohio,  re- 
ferred to  above,  a  mortgage  of  exempt  property  in 
which  the  wife  does  not  assent  cannot  be  enforced 
against  her,  because  it  is  within  tLj  meaning  of  that 
statute  a  disposing  of  and  parting  with  property.'  A 
mortgage  or  pledge  of  exempt  property  is  not  an 
unconditional  or  general  waiver  of  the  mortgagor's 
exemption  rights  therein.  The  waiver  entitles  the 
mortgagee  or  pledgee  to  subject  the  property  to  the 
satisfaction  of  his  claim,  in  like  manner  and  with 
the  same  effect  as  if  it  were  not  exempt;^  but  with  re- 
spect to  other  creditors,  the  property  is  exempt  to  the 
same  extent  as  before  the  mortgage  was  given.* 

§  219.  The  Constitutionality  of  Exemption  Laws, 
when  sought  to  be  applied  to  debts  contracted  j^rior  to 
their  passage,  has  been  frequently  discussed.  Chief 
Justice  Taney  considered  the  question  incidentally  in 
Bronson  v.  Kinzie,^  saying :  "  Undoubtedly,  a  state  may 
regulate  at  pleasure  the  modes  of  proceeding  in  its 

1  Patterson  f.  Taylor,  15  Fla.  336;  Love  v.  Blair,  72  lud.  281;  Cronan  v. 
Honor,  10  Heisk.  583. 

'■'  Col  well  V.  Carper,  15  Ohio  St.  279. 

»  Jonea  v.  Scott,  IC  Kan.  33;  Frost  v.  Shaw,  3  Ohio  St.  270. 

*  Collett  V.  Jones,  2  B.  Moa.  19;  36  Am.  Dec.  580. 

'  I  How.  315. 


663  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §219 

courts  in  relation  to  past  contracts  as  well  as  future. 
It  may,  for  example,  shorten  the  period  of  time  within 
which  claims  shall  be  barred  by  the  statute  of  limi- 
tations. It  may,  if  it  thinks  proper,  direct  that  the 
necessary  implements  of  agriculture,  or  the  tools  of  the 
mechanic,  or  articles  of  necessity  in  household  furni- 
ture, shall,  like  wearing  apparel,  not  be  liable  to  exe- 
cution on  judgments.  Regulations  of  this  description 
have  always  been  considered,  in  every  civilized  com- 
munity, as  properly  belonging  to  the  remedy,  to  be 
exercised  or  not  by  every  sovereignty,  according  to 
its  views  of  policy  and  humanity.  It  must  reside  in 
every  state  to  enable  it  to  secure  its  citizens  from  un- 
just and  harassing  litigation,  and  to  protect  them  in 
those  pursuits  which  are  necessary  to  the  existence  and 
well-being  of  every  community.  And  although  a  new 
remedy  may  be  deemed  less  convenient  than  the  old 
one,  and  may  in  some  degree  render  the  recovery  of 
debts  more  tardy  and  difficult,  yet  it  will  not  follow 
that  the  law  is  unconstitutional."  Long  prior  to  the 
decision  of  Bronson  v.  Kinzie,  it  had  become  well  set- 
tled that  it  was  within  the  power  of  the  state  legisla- 
tures to  abolish  imprisonment  for  debt,  and  to  make 
the  abolition  applicable  to  prior  as  well  as  to  future 
liabilities.^  The  language  of  that  decision  unques- 
tionably led  to  the  conclusion  that  exemption  laws 
pertained  to  the  remedy  merely,  and  unless  so  unrea- 
sonable as  to  render  unavoidable  the  inference  that 
they  were  enacted  with  the  view  of  impairing  the 
obligation    of  pre-existing   contracts,   they   were  sus- 

^  Sturgis  V.  Crowninshiekl,  4  Wheat.  200;  Beera  v.  Haughton,  9  Pet.  359; 
Woodfin  V.  HoDper,  4  Humph.  13;  Fisher  v.  Lacky,  G  Blackf.  373;  Newtou  v, 
Tibbatta,  2  Eng.  150. 


§  i:9  OF   rKOPERTY   EXEMPT  FROM  EXECUTION.  CG4 

taimnl  and  iMifoived  even  against  such  contracts/  unless 
wo  may  rc^-ard  the  ckrisioiis  in  Missouri,  upon  the 
statute  oxeniptiiij^  the  property  of  wives  from  execu- 
tions against  their  husbands,  as  an  exception  to  the  gen- 
eral current  of  the  authorities."'  But  tlie  statutes  in 
regard  to  homesteads  attempted  to  witlidraw  property 
of  considerable  value  from  the  reach  of  executions,  and 
occasioned  the  constitutionality  of  exemption  laws  to  be 
discussed  anew.  It  would  seem  that  the  principles 
applicable  to  the  exemption  of  personal  property  would 
a]>ply  with  equal  force  to  real  estate.  If  a  state,  with- 
out impairing  the  obligation  of  contracts,  may  exempt 
certain  personal  property  upon  which  the  creditor  had 
a  right  to  rely  for  payment  at  the  creation  of  the  con- 
tract, why  may  it  not  also  exempt  certain  real  estate  ? 
It  is  true  that  implements  of  husbandry  and  the  tools 
of  mechanics,  with  other  means  of  obtaining  livelihood, 
are  almost  indispensable  to  the  debtor ;  but  not  less  so 
than  a  place  in  which  to  shelter  his  family.  And  after 
all,  the  question  is  not  one  of  hardship  or  of  necessity. 
It  is  whether  the  value  of  the  contract  made  anterior 
to  the  passage  of  the  law  is  impaired  by  enforcing  the 
law.  Whatever  the  courts  may  ultimately  determine, 
it  will  always  require  a  great  deal  of  sophistry  to  make 
it  seem  that  an  obligation  which  could  be  wholly  or 
partly  enforced  but  for  the  operation  of  some  law  is 

1  Hardeman  v.  Downer,  .39  Oa.  425;  Morse  v.  Goold,  11  N.  Y.  '281;  62  Am. 
Dec.  103;  overruling  Danks  v.  Quaekenbush,  1  N.  Y.  129,  and  Quackcubush  v. 
Danks,  1  Deaio,  128;  Rockwell  v.  Hubbell,  2  Doug.  (Mich.)  197;  Cusic  r.  Doug- 
las, 3  Kan.  123;  87  Am.  Dec.  458;  Schneider  v.  Heidelberger,  45  Ala.  126; 
Gray  v.  Munroe,  1  McLean,  528;  Evans  v.  Montgomery,  4  Watts  &  S.  218; 
Grimes  v.  Bryne,  2  Minn.  89;  Stevenson  v.  Osborne,  41  Miss.  119;  Mede  r. 
Hand,  5  Am.  Law  Reg.,  N.  S.,  82;  Bigtlow  v.  Pritchard,  21  Pick.  169;  Van 
Hofifman  v.  City  of  Quiucy,  4  Wall.  5.35;  In  re  Jolin  Owens,  7  Chic.  L.  N.  397. 

»  Cunningham  v.  Gray.  20  Mo.  170;  Tally  v.  Thompson,  20  Mo.  277;  Har- 
vey V.  Wickham,  23  Mo.  112;  Hockaday  v.  Sallee,  26  Mo.  219. 


665  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §219 

not  impaired  by  that  law.  When  the  constitutionality 
of  homestead  laws  puMporting  to  be  applicable  to  ante- 
cedent debts  was  first  discussed,  it  was  sustained/  be- 
cause it  was  correctly  thought  to  be  upheld  by  the 
language  of  Chief  Justice  Taney,  in  Bronson  v.  Kinzie. 
But  later  decisions  show  that  state  laws  or  constitutions 
enlarging  homestead  exemptions,  or  creating  such  ex- 
emptions where  none  before  existed,  are  unconstitu- 
tional in  so  far  as  they  apply  to  liabilities  created 
before  their  passage.^ 

These  decisions,  it  is  true,  are  not  directly  applicable 
to  other  exemptions;  but  the  principles  upon  which 
the}''  are  based  are  so  applicable.  Exemptions  of  in- 
considerable value  may  possibly  be  allowed  a  retroactive 
operation.  But  we  think  the  course  of  recent  adjudica- 
tions is  such  as  to  confirm  the  following  prediction 
made  by  Judge  Dillon,  in  the  American  Law  Register 
for  December,  1865:  ''On  examining  anew  the  decis- 
ions of  the  United  States  supreme  court  on  the  sub- 
ject of  the  obligation  of  contracts,  from  the  earliest 
down  to  the  latest,  we  are  persuaded  that  that  tribunal 
will  deny  the  validity  of  exemption  laws  as  to  antece- 
dent obligations."''  The  question  has  been  re-examined 
by  that  tribunal,  in  a  case  involving  the  validity  of  a 
homestead  exemption.  The  constitution  of  North  Caro- 
lina, which  took  effect  April  24,  18G8,  exempted  per- 

1  Hardeman  /•.  Downer,  39  <  Ja.  425;  Cusic  v.  Douglas,  3  Kan.  123;  MeJe  v. 
Hand,  5  Am.  Law  Reg.,  N.  S.,  82. 

■'  Gunn  I'.  Barry,  15  Wall.  610;  5  Leg.  Gaz.  193;  The  Homestead  Cases,  22 
Gratt.  260;  12  Am.  Rep.  507;  Grant  v.  Casl)y,  51  Ga.  450;  Cochnui  v.  Darcy,  6 
Chic.  L.  N.  230:  .Jones  v.  Brandon,  48  Ga.  593;  Lessley  v.  Phipps,  18  Am.  Law 
Keg.,  N.  S.,  230;  49  Miss.  790;  Martin  v.  Hughes,  07  N.  C.  293;  Kibbey  v. 
Jones,  7  Bush,  243.  But  a  liomcstead  law  not  increasing  former  exemption  is 
valid.  Garrett  v.  Cheshire,  06  N.  C.  390;  12  Am.  Rep.  547;  Hill  v.  Kessler, 
63  N.  C  437. 

*  Note  to  Medc  v.  Hand,  5  Am.  Law  Reg.,  N.  S.,  93. 


§-:i9  OF  rnOPERTY   exempt  from   execution.  CG6 

sonal  pn^poi-t y  of  the  vulue  of  llvo  Imiulrcd  ilollara,  and 
the  hoinostoail  aiul  its  appurtontiiR-es  not  oxeeeding  one 
tliousand  dollai-s  in  value.  Before  that  time,  the  ex- 
emptions allowed  in  that  state  were  "certain  enumer- 
ated artieles  of  inconsiderable  value,  and  such  other 
property  as  the  freeholders  appointed  for  that  purpose 
might  deem  necessary  I'or  the  comfoit  and  support  of 
tlie  debtor's  family,  not  exceeding  in  value  fifty  dollars." 
After  the  adoption  ()f  the  constitution,  judgment  was  re- 
covered upon  a  pre-existing  debt,  and  the  question  was, 
whether  it  might  l)e  satisfied  out  of  the  debtor's  home- 
stead; and  the  question  was  answered  in  the  affirma- 
tive. The  conclusions  announced  by  the  court  were 
that  to  impair  is  *'  to  make  worse;  to  diminish  in  quan- 
tity, value,  excellence,  or  strength;  to  lessen  in  power, 
to  weaken,  to  enfeeble;  to  deteriorate";  that  by  the 
constitution  a  contract  is  not  to  be  impaired  at  all; 
that  the  impairment  "thus  denounced  must  be  mate- 
rial"; and  that  "the  remedy  subsisting  in  a  state  when 
and  where  a  contract  is  made  and  is  to  be  performed 
is  a  part  of  its  obligation,  and  any  subsequent  law  of 
the  state  which  so  affects  that  remedy  as  substantially 
to  impair  and  lessen  the  value  of  the  contract  is  for- 
bidden by  the  constitution,  and  is  therefore  void."^ 
In  Mississippi,  anterior  to  the  rendition  of  a  judg- 
ment the  statute  exempted  one  horse  or  mule.  Subse- 
quentl}'  this  exemption  was  increased  to  two  horses  or 
nmles.  In  refusing  to  give  this  statute  a  retrospective 
operation,  the  court  said:  "It  may  now  be  considered 
as  firmly  settled  here  and  elsewhere,  that  any  law 
which  materially  increases  the  amount  of  property 
withdrawn  from  liability  to  the  owner's  debts  impairs 

*  Edwards  v.  Kearzey,  9G  U.  S.  595. 


667  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §219 

the  obligation  of  existing  contracts,  and  is  therefore,  as 
to  them,  unconstitutional.  Is  an  extension  of  the  ex- 
emption from  one  horse  to  two  a  material  increase  in 
the  amount  exempted  ?  To  a  man  of  wealth  it  seems 
inconsiderable ;  and  yet,  as  to  this  species  of  property, 
it  doubles  the  exemption.  To  a  large  class  of  our 
population,  embracing  those  most  injured  as  well  as 
those  most  benefited  by  exemption  laws,  the  difference 
between  one  horse  and  two  is  quite  material.  It  is 
the  small  farmers  and  laborers  who  are  most  interested 
in  the  exemption  of  two  horses  rather  than  one.  It  is 
the  small  trader  who  will  be  most  injured  if  the  in- 
crease is  applied  to  his  existing  claims.  If  our  present . 
homestead  exemption  of  eighty  acres  of  land  should  be 
increased  to  a  hundred  and  sixty  acres,  the  increase 
would  undoubtedly  be  considered  material.  But  to 
the  homeless  and  landless,  who  comprise  so  large  a 
portion  of  our  population,  and  all  of  whose  wealth  con- 
sists usually  of  household  furniture  and  one  or  more 
head  of  cattle  or  horses,  a  law  which  doubles  the  ex- 
emption in  this  species  of  property  is  as  important  as 
one  which  doubles  the  number  of  acres  to  a  land-holder. 
These  people  trade  and  traffic  among  themselves,  and 
are  creditors  as  well  as  debtors.  Such  a  creditor  may 
as  well  complain  of  a  law  which,  acting  retrospectively, 
doubles  tlie  personal  exemption,  as  the  banker  or  whole- 
sale merchant  of  one  which  doubles  the  homestead."^ 
Some  of  the  states  have  incorporated  in  their  constitu- 
tions a  specific  enumeration  of  property  which  shall  be 
exempt  frf)ni  execution.  There  can  be  no  doubt  that 
the  exemptions  there  expressed  cannot  be  restricted. 

1  Johnaori  v.  Fletclior,  54  Miss.  029;  28  Am.  Rep.  388.     To  tho  same  effect 
are  Lesslcy  v.  Pliipps,  49  :Mi3s.  790;  Carltou  v.  Watts,  82  N.  C.  212. 


§•-20  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  CG8 

Whether  they  can  bo  extended  is  more  questionable. 
In  tlie  only  state  in  which  the  question  seems  to  have 
arisen,  the  decision  litis  been  that  they  cannot.^ 

SECOND. OF    THE   PERSONS    ENTITLED    TO  CLAIM    THE  BETJE- 

FIT    OF    EXEMPTION    LAWS. 

§  220.    Exemption    Laws  Apply  to   All    Inhabi- 
tants.—  Having  considered  the  general  principles  ap- 
plicable to  the  exemption  laws,  we  arc  now  about  to 
treat  more  particularly  of  the  iiersons  and  froimiy  to 
which  these  laws  apply.     In  considering  the  persons  en- 
titled to  the  benefit  of  these  laws,  we  shall  first  speak  of 
statutes  in  which  no  particular  persons  are  designated; 
and  secondly,  of  statutes  in  which  exemption  is  given  to 
a  specified  class  of  persons.     Unless  the  statute  shows 
a  contrary  intent,  all  inhabitants  of  the  state  are  en- 
titled  to    the   protection    aftbrded   by  its   provisions. 
Hence  a  resident  alien  is,  in  this  respect,  as  much 
favored  as  a  citizen.^     With  respect  to  non-residents 
who  may  happen  to  be  temporarily  in  a  state  where 
their  property  is  seized    under   execution,  the   courts 
have  been  unable  to  agree.     On  the  one  side,  it  is  in- 
sisted that  the  exemption  laws  are  designed  solely  for 
the  benefit  of  the  poor  people  resident  in   the  state 
where  they  are  enacted;^  and  on  the  other  side,  it  is 
maintained,  with  at  least  equal  force,  that  unless  the 
statute  is  by  its  terms  restricted  to  permanent  resi- 
dents, the  courts  have  no  authority  to  make  such  re- 
striction.* 

1  Duncan  v.  Barnet,  1 1  S.  C.  333. 

2  People  V.  McClay,  2  Neb.  7;  Cobbs  v.  Coleman,  14  Tex.  594. 
^Liscxibeer.  Holt,  1  Sneed,  42;  Hawkins  v.  Pearce,  11  Humph.  44;  Finley 

r.  Sly,  44  Ind.  2GG;  Munds  v.  Cassidey,  98  N.  C.  558. 

*  Hill  V.  Loot  ^,  G  N.  H.  2G3;  Lowe  v.  Stringham,  14  Wis.  222;  Abercrom- 
bie  V.  Alderson,  9  Ala.  981;  Haskill  v.  Andros,  4  Vt.  G09;  24  Am.  Dec.  G45. 
See  ante,  §  209. 


669  OF  PROPERTY  EXEMPT  FROM  EXECUTION".  §221 

§221.  Co-tenants  and  Copartners. — It  oT-^n  liap- 
pens  that  property  designated  as  exempt  by  slatnte 
belongs  to  two  or  more  persons,  either  as  co-tenants  or 
copartners.  The  question  then  arises  whether  this 
property  must  be  treated  as  exempt  to  the  same  ex- 
tent as  if  held  in  severalty.  The  answers  to  this  ques- 
tion are  irreconcilable,  and  the  opposing  opinions  are 
both  supported  by  very  respectable  authorities.  On 
the  one  hand,  it  has  been  insisted  that  the  terms  of 
the  exemption  statutes  are  such  as  to  indicate  that  the 
legislature  proposed  to  deal  only  with  estates  in  sev- 
eralty ;  that  there  would  be  great  difficulty,  and  even 
impropriety,  in  setting  apart  to  one  co-tenant  or  co- 
partner, to  hold  as  exempt  for  his  sole  benefit,  property 
to  which  he  had  no  claim  to  any  separate  possession 
or  enjoyment;  and  finally,  as  a  result  of  these  and 
other  considerations,  that  the  operation  of  the  exemp- 
tion laws  must  be  confined  to  estates  in  severalty.^ 
But,  on  the  other  hand,  while  the  right  of  a  partner 
to  the  benefit  of  exemption  has  been  denied,  where  its 
allowance .  was  against  the  consent  of  his  copartners 
and  to  the  prejudice  of  the  interests  of  the  partner- 
ship," yet  where  these  obstacles  did  not  interpose,  co- 
tenants  and  copartners  have  been  placed  on  the  same 
footing  in  a  majority  of  the  states,  and  both  have  been 
given  the  full  benefit  of  the  exemption  laws.  This 
position,  even  where  the  words  of  the  statute  do  not 
clearly  indicate  an  intent  to  deal  with  undivided  in- 
terests, is  made  tenable  by  the  general  rule  that  these 
statutes  nmst  be  liberally  construed,  so  as  to  promote 
the  policy  on  which  they  are  based,  and  accomplish 

1  Bonsai  r.  Comly,  44  Pa.  St.  442;  Pondu.  Kimball,  101  Mass.  105;  Guptil 
V.  McFec,  9  Kan.  30. 

'  Till 'a  Case,  3  Nob.  ?01;  Burns  v,  Harris,  07  N.  C.  140. 


§  '2-21  OF   PROrERTY  EXEMPT  FROM   EXECUTION.  G70 

iho  purp(isos  to  which  they  are  directed.  Prominent 
amonu:  these  purposes  is  the  protection  of  the  poor,  by 
allo\vin<;  them  the  implements  of  their  trade,  and  the 
other  means  essential  to  enable  them  to  gain  a  liveli- 
luK^d.  And  where  a  man  is  supporting  liis  family  by 
the  aid  oi'  a  team  or  of  tools,  or  of  provisions  wliich 
he  would  be  entitled  to  retain  if  owned  by  him  in 
severalt}'-,  it  seems  to  be  a  clear  perversion  of  the 
spirit  of  the  exemption  laws  to  deprive  him  of  a  moiety 
of  the  property  because  he  is  unable  to  own  the 
Avhole.  Hence,  as  a  general  rule,  a  part  interest  is,  in 
most  of  the  states,  as  much  exempt  from  execution  as 
though  it  were  an  interest  in  severalty;  and  this  is 
true,  whether  it  be  held  in  copartnership  or  co-tenancy, 
and  whether  the  execution  be  for  the  debt  of  one 
owner,  or  for  the  debt  of  all  the  owners.^  Where 
an  execution  is  against  two  or  more  persons,  each  is 
entitled  to  the  benefit  of  the  statute  of  exemptions  to 
the  same  extent,  as  though  the  writ  were  against  liim 
as  a  sole  defendant;-  but  where  a  writ  was  against 
a  husband  and  wife,  it  was  held  that  after  he  had 
been  allowed  the  benefit  of  exemption  to  the  extent  of 
his  property,  she  might  also  claim  exemption  as  to  her 
property,  provided  that  the  allowance  to  both  did  not,  in 
the  a'J-irren-ate,  exceed  in  value  the  amount  allowed  to 
the  husband  by  law.^  That  the  property  of  a  co-tenant 
may  be  exempt  from  execution  ought  not  to  admit  of 
doubt.  If  the  circumstances  are  such  as  would  en- 
title him  to  exempt  the   whole  chattel   were   he  the 

>  Stewart  v.  Brown,  .37  N.  Y.  350;  9.3  Am.  Dec.  579;  Oilman  v.  Williams, 
7  Wis.  32^);  70  Am.  Dec.  219;  Burns  v.  Harris,  67  N.  C.  140;  Gaylord  v.  Im- 
hoff,  1  Cin.  Rep.  404;  Howard  v.  Jones,  50  Ala.  67,  referred  to  in  13  Am.  Law 
Reg.  4.")7;  Radclifif  v.  Wood,  25  Barlj.  52;  State  v.  Kenan,  94  N.  C.  296. 

■'  Spade  V.  Bruner,  72  Pa.  St.  57;  29  Leg.  Int.  350. 

'  Crane  v.  Waggoner,  33  lud.  83. 


671  OF  PROPERTY  EXEMPT  FROM  EXECUTIOK  §221 

owner  thereof,  they  must  upon  principle  be  potent  to 
exempt  his  moiety.  The  object  of  the  exemption  laws 
was  not  to  exempt  estates  in  severalty  merel}^  but  to 
make  some  provision  for  the  better  maintenance  of 
persons  in  humble  circumstances.  If  such  a  person 
owns  but  half  of  a  cow  or  a  horse,  that  half  is  as  much 
within  the  letter  and  the  spirit  of  the  exemption  laws 
as  the  whole  would  be.^  Nor  is  it  true  that  the  ex- 
emption of  this  half  is  any  less  consistent  with  the 
nature  of  the  estate  and  the  rights  of  the  other  co- 
tenant  than  would  be  its  sale  under  execution.  With 
respect  to  partnership  property,  other  considerations 
intervene,  and  more  doubt  exists  both  upon  principle 
and  authority.  Some  of  the  courts  still  maintain  the 
right  of  exemption."^  "That  the  several  members  of  a 
partnership  come  within  the  language  of  the  statute 
and  constitution  there  should  be  no  question,  and  that 
they  by  becoming  members  of  a  firm  do  not  place 
themselves  beyond  the  pale  of  the  reason  of  the  law 
would  seem  clear.  The  same  reason  which  exists  for 
protecting  an  individual  engaged  in  carrying  on  busi- 
ness would  seem  to  apply  with  equal  force  to  each  and 
every  member  of  the  firm.  The  whole  object  of  the 
law  is  to  prevent  a  person  being  stripped  of  all  means 
of  carrying  on  his  business,  and  in  tliis  respect  no  dis- 
tinction can  exist  between  those  who  are  members  of  a 
firm  and  those  who  are  not."  ^  In  Wisconsin,  an  ex- 
emption will  be  allowed  to  one  partner  if  his  copartners 

'  Newton  v.  Howe,  29  Wis.  531;  9  Am.  Rep.  GIG;  Scrvanti  v.  Lusk,  43  Cal. 
238;  RutludKe  v.  Rutle(lf,'e,  8  Baxt.  33. 

■^  Blanchanl  v.  Pjuscliall,  68  Ga.  32;  45  Am.  Rep.  474;  Evans  v.  Bryan,  95 
N.  C.  174;  59  Am.  Rep.  2.'«. 

»  Skinner  v.  Sl.aiinon,  44  Micli.  8(5;  .38  Am.  Rep.  2.32;  Cliipnian  v.  Kclley, 
60  Mich.  438;  McCoy  v.  Brcuuau,  01  Mich.  302. 


§'2'J1  OF   PROrERTY   EXEMPT  FROM  EXECUTION.  GV2 

assent  thereto.^     This  is  the  middle  ground  between 
two  opposing  lines  of  decision,  and,  as  is  usually  the 
case,  is  less  defensible,  when  logically  considered,  than 
either  of  the   extremes  between  which  it  lies.     For 
surely  the  right  of  exemption  was  not  intended  to  be 
dependent  on   the  will  of  some  lliiid  j>erson;  to  exist 
with  respect  to  some  partners,  and  not  to  exist  with 
respect  to  others,  as  might  suit  the   caprice   of  the 
partner  whose  interests  were  not  involved  at  all.     But 
the  tendency  of  the  recent  decisions  to  deny  altogether 
the    right  of  exemption   out  of   partnership  assets  is 
unquestionable,  and  we  think  irresistible.^     Some    of 
them    proceed    upon   the    peculiar    language    of    the 
statute  granting  the  exemption,  as  where  it  seems  to 
contemplate  that  the  exemption  must  be  claimed  by 
the  head  of  a  fjimily,  or  that  the  property  shall   be 
selected  by  some  individual,  to  be   by  him  held  and 
enjoyed   in  severalty.     We  apprehend  that  the    true 
grounds  are,  that  partnership  assets  are  generally  ac- 
quired and  held  for  purposes  of  trade  and  commerce ; 
that  neither  partner  has  any  specific  interest  in  the  firm 
assets,  but  only  the  right  to  have  the  business  settled 
and  his  share  paid  to  him  out  of  what  remains;  and 
that  each  partner  has  the  right  to  insist  on  the  a])pli- 
cation  of  all  the  assets,  in  case  of   necessity,  to  the 
satisfaction  of  the  firm  debts. 

•  O'Gorman  v.  Fink,  57  Wis.  649;  4G  Am.  Rep.  50;  Russell  v.  Lennon,  39 
Wis.  570;  20  Am.  Rep.  60. 

»  Gaylord  v.  Imlioff,  26  Ohio  St.  3l7;  20  Am.  Rep.  762;  State  v.  Spencer, 
64  Mo.  355;  27  Am.  Rep.  244;  White  v.  Heffner,  30  La.,  pt.  2,  p.  1280;  In  re 
Han.llin,  3  Dill.  290;  Gill  v.  Lattimore,  9  Lea,  381;  Wise  v.  Frey,  7  Neb.  1.34; 
20  Am.  Rep.  .380;  Baker  v.  Sheehan,  29  Minn.  235;  Spiro  v.  Paxton,  3  Lea, 
75;  31  Am.  Rfp.  630;  State  v.  Bowden,  18  Fla.  17;  Short  v.  McGruder,  22 
Fed.  Rep.  46;  (Jiovauni  v.  First  N.  B.,  55  Ala.  805;  28  Am.  Rep.  723;  Love  v. 
Blair,  72  Ind.  281. 


673  OF  PROPERTY  EXEMPT  FROM  EXECUTION'.  §222 

§  222.  Head  of  a  Family.  —  In  many  of  the  states, 
homestead  and  other  exemptions  are  allowed  to  the 
"heads  of  families";  and  the  courts  have  frequently 
been  required  to  discuss  and  decide  the  question,  Who 
is  entitled  to  the  benefit  of  this  exemption?  In  the 
dictionaries,  a  family  is  defined  as  being  "the  collective 
body  of  persons  who  live  in  one  house,  and  under  one 
head  or  manager;  a  household,  including  parents,  chil- 
dren, and  servants,  and,  as  the  case  may  be,  lodgers  or 
boarders."^  But  it  is  evident,  from  the  decisions,  that 
the  word  "family"  has,  in  the  exemption  statutes,  a 
signification  somewhat  different  from  that  attributed  to 
it  in  the  dictionaries.  In  the  first  place,  it  is  by  no 
means  essential  that  persons,  to  constitute  a  family, 
should  reside  in  the  same  house.  Thus  a  man  who 
has  either  a  wife  or  a  child  dependent  on  him  for  sup- 
port is  the  head  of  a  family,^  although  he  does  not  re- 
side under  the  same  roof  with  them.^  This  rule  would 
probably  not  be  applied  where  the  separation  of  the 
members  of  the  family  is  permanent  in  its  oharactei-; 
nor  where  the  head  of  the  family  resides  in  one  state, 
and  the  other  members  of  the  family  in  another  state.* 
A  husband  would  not  cease  to  be  the  head  of  a  family 
while  his  wife  and  children  were  temporarily  absent  from 
the  state.^  But  if  he  does  not  live  with  his  wife  for  a 
number  of  years,  and  has  no  children,  he  is  not  the 
head  of  a  family."     In  the  second  place,  it  is  quite  pos- 

*  Webster's  Dictionary;  Parsons  v.  Livingston,  11  Iowa,  104;  Zimmerman 
r.  Franke,  .34  Kan.  6.54;  Arnold?;.  Waltz,  53  Iowa,  707;  30  Am.  Rep.  248. 

»  Barney  v.  Leeds,  51  N.  H.  253;  Cox  v.  Staflord,  14  How.  Pr.  519. 
»  Seaton  v.   Marshall,  G  Bush,  429;  90  Am.   Dec.  GS3;  Jiobinson's  Case,  3 
Abb.  Pr.  4()(i;  Sall.-e  r.  Waters,  17  Ala.  482. 

*  Allen  V.  Manassec,  4  Ala.  5.54;  Abercrombie  v.  Alderson,  9  Ala.  981; 
Boykin  v.  Edwanls,  21  Ala.  2()1 ;  Keiffer  v.  Barney,  31  Ala.  192, 

*  State  V.  Finn,  8  Mo.  App.  2(il. 

*  Linton  v.  Crosby,  50  Iowa,  380;  41  Am.  Rep.  107. 

Vol.  I.— '13 


§':*J2     OF  PROrERTY  EXEMPT  FROM  EXECUTION.      674 

siblo  lor  sovoral  poi'soiis  t*>  ivsido  toget>hcr  in  the  same 
house,  under  one  head  or  inanaL^er,  without  eonstituting 
;i  ianiily  within  liie  nieaninij^  of  the  exemption  statutes. 
This  may  happen  where  a  man,  having  no  wife  nor 
children,  lives  in  a  house  with  his  servants  or  other 
employees.  Thus,  where  an  unmarried  man  employed 
his  brother  and  his  brotlier's  wife  to  live  with  him  and 
take  care  of  his  house,  he  was  held  not,  on  that  aecount, 
to  be  the  head  of  a  family.  In  this  case,  the  court 
said:  "  The  head  of  a  famil}-  primarily  is  the  husband 
or  father.  One  ma}^  be  such  head,  however,  without 
being  either.  Thus  the  mother  may  become  such  on 
the  death  of  the  husband.  So  a  son  havini^  mother 
and  brother  and  sisters,  or  either,  depending  upon  him 
for  support,  and  living  in  a  household  which  he  con- 
trols, miiiht  be  such  head.  And  thus  we  mi^ht  state 
many  cases  where  the  party  claiming  the  exemption 
would  be  leirally  entitled  to  it,  and  still  not  be  the  hus- 
band  or  father.  And  3^et  m  each  case  he  must,  for  the 
purposes  of  this  inquiry,  stand  in  the  place  of  the 
father.  He  must  be  the  master  in  law  of  the  family. 
In  the  case  before  us,  the  married  brother  and  his  wife 
in  no  proper  sense  belong  to  the  family  of  the  plaintiff. 
He  had  no  control  over  them,  except  such  as  resulted 
purely  and  exclusively  from  contract.  He  had  no 
riy:ht  to  exact  obedience  from  them,  or  to  direct  their 
movements,  except  so  far  as  their  agreement  bound 
them  to  take  care  of  the  house."^  Where  two  or  more 
persons  are  residing  together,  one  of  whom  owes  the 
du^y  of  support  and  protection  to  the  others;  and 
they,  on  their  part,  are  dependent  on  him  and  owe  him 
the   duty  of  obedience,  and   these   correlative  duties 

'  \Mialen  v.  Cadmau,  11  Iowa,  226i 


675  OF  PROPERTY  EXEMPT  FROM  EXECUTION".  §^^23 

arise  out  of  the  status  of  the  parties,  and  not  out  of 
a  contract  between  them,  other  than  the  contract  of 
marriage,  there  is  undoubtedly  a  family.  Hence  a 
husband  and  wife,  if  living  together  as  such,  though 
without  children,  servants,  or  other  dependents,  consti- 
tute a  family.^  If  the  persons  living  in  the  same  house 
owe  these  duties  to  one  another  because  of  some  con- 
tract relation,  as  where  one  is  master  and  the  others 
servants  or  employees,  they  do  not  constitute  a  family.^ 
But  it  is  by  no  means  necessary  that  the  relation  of 
husband  and  wife,  or  parent  and  child,  should  exist  in 
every  case  to  constitute  a  family.  One  who  has  liv- 
ing with  him,  and  dependent  on  him  for  support,  his 
mother,  or  brother,  or  sisters,  is  the  head  of  a  family, 
and  as  such  entitled  to  the  benefit  of  the  exemption 
laws.^  That  a  son  is  the  head  of  a  family  when  his 
mother  is  living  with  him  and  dependent  on  him  for 
support  is  unquestionable,  for  he  owes  her  this  duty. 
But  in  many  instances  persons  live  in  the  same  house, 
looking  to  its  master  for  support  and  protection,  which 
he  affords  to  them,  though  under  no  legal  obligation  to 
do  so.  In  Georgia  such  a  person  is  not  the  head  of  a 
family  within  the  meaning  of  the  homestead  laws.  In 
that  state,  the  applicant  for  a  homestead,  to  which 
only  a  head  of  a  family  w^as  entitled,  alleged  that  "he 
was  the  head  of  a  family  consisting  of  his  sister,  a  widow 
about  thirty-eight  years  old,  and  her  three  children. 

'  Kitchell  V.  Burgwin,  21  111.  45;  Cox  v.  Staflford,  14  How.  Pr.  519;  Brown 
V.  Brown,  68  Mo.  .388. 

^  Whaley  v.  VVhaley,  50  Mo.  577;  Whithead  v.  Nickleson,  48  Tex.  530; 
Calhoun  v.  McLcndon,  42  Ga.  405;  Calhoun  v.  Williams,  32  Gratt.  18;  34  Am. 
Pucp.  75U. 

*  Parsons  v.  Livingston,  11  Iowa,  104;  77  Am.  Dec.  1.35;  Wade  v.  Jones, 
20  Mo.  75;  61  Am.  I>ec.  .084;  McMurray  v.  Shuck,  6  Bush,  111;  'J'J  Am.  Doc. 
6G2;  Marsh  v.  Lazenby,  41  Ga.  153;  Counaughtou  v.  Sands,  32  Wis.  387. 


|ooo  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  67G 

agoil  sevonteon,  lirteon,  and  .seven  years  old,  respect- 
ively, who  are  indigent,  and  mainly  dependent  on  peti- 
tioner for  support."  A  demurrer  to  the  petition  was 
sustained,  on  the  following  grounds:  "The  applicant 
>vas  under  no  legal  obligation  to  support  the  persons 
whom  he  claimed  to  be  his  family,  and  therefore  he 
was  not  entitled  to  a  homestead  as  the  head  of  a  fam- 
ily. If  the  applicant  could  obtain  a  homestead  as  the 
head  of  a  family  of  persons  w^liom  he  was  not  legall}'' 
bound  to  support,  then  he  might  enjoy  it  for  his  own 
benefit  exclusively,  and  refuse  with  impunity  to  sup- 
port those  for  whose  benefit  he  claimed  to  have  ob- 
tained it."^  But  this  is  an  isolated  case,  and  deserves 
so  to  remain.  It  is  not  essential  that  the  head  of  a 
famil}^  be  under  a  legal  obligation  to  support  its  de- 
pendent members.  The  ties  of  consanguinity  may  bo 
sufficient  to  cause  him  to  assume  the  obligation,  where 
the  law  does  not  require  him  to  do  so.  Hence,  if  he 
takes  charge  of  the  children  of  a  deceased  brother  or 
sister,  providing  for  them  a  home,  and  standing,  by  his 
voluntary  act,  in  the  relation  of  parent  toward  them, 
he  and  they  constitute  a  family.^  Where  the  persons 
residing  together  under  one  roof  are  relatives,  recog- 
nizing one  person  as  the  head  or  master  of  the  house, 
the  tendency  of  the  recent  decisions  is  to  treat  him 
as  the  head  of  a  family,  though  such  persons  are  not 
minors  nor  dependent  on  him  for  support.  "The  re- 
lations existing  between  such  persons  must  be  of  a  per- 
manent and  domestic  character,  not  abiding  together 
temporarily  as  strangerf?.  There  need  not,  of  neces- 
sity, be  dependence  or  obligation  growing  out  of  the 

1  Dendy  v.  Gamble,  64  Ga.  523. 

»  Ainold  V.  Waltz,  53  Iowa,  706;  36  Am.  Rep.  248. 


677  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §222 

relation."^  Widowers  and  widows  have  been  held  to 
be  heads  of  famihes,  when  the  persons  residing  with 
them  were  not  dependent  upon  them,  and  did  not  owe 
any  duty  to  them  other  than  that  resulting  from  a 
contract  of  employment.  Thus  in  Nebraska  a  widower 
who  was  residing:  on  his  homestead  with  a  married 
son,  the  son's  wife,  and  the  wife  and  children  of  an- 
other married  son,  then  absent  at  the  mines,  was  ad- 
judged to  be  entitled  to  retain  such  homestead  as  the 
head  of  a  family;  but  this  was  on  the  ground  that  as 
the  homestead  existed  while  its  owner  was  a  married 
man,  "neither  the  death  of  the  wife,  nor  her  abandon- 
ment of  her  husband,  nor  the  arrival  at  full  age  and 
departure  from  the  parental  roof  of  all  the  sons  and 
daughters,  would  have  the  effect  of  dismantling  the 
homestead  of  the  protection  of  the  exemption  law."^ 
In  other  states,  where  a  family  has  existed  consisting 
of  a  husband  and  wife,  and  after  his  death  she  con- 
tinued to  maintain  a  family  establishment  consisting  of 
herself  and  servants,  she  has  been  held  to  be  the  head 
of  a  family.^  These  decisions  may  be  regarded  as 
forced  from  the  courts  by  the  manifest  injustice  and 
even  cruelty  of  depriving  a  wife  of  the  protection  of 
the  exemption  laws,  because  death  has  robbed  her  of 
the  protection  and  support  of  her  husband.  Neverthe- 
less, these  circumstances  of  hardship  do  not  change 
the  signification  of  the  word  "family."  Servants  do 
not  constitute  a  part  of  a  family.  Therefore,  their  em- 
ployment by  a  widow  does  not  make  her  the  head  of  a 
family.*     If  the  law  were  otherwise,  a  widow  of  suffi- 

*  Tyson  v.  Reynolds,  52  Iowa,  4.S1;  Duncan  v.  Frank,  8  Mo.  App.  286. 

*  Dorrington  r.  Myers,  1 1  Neb.  ^Sd. 

'Collier  V.  Latimer,  8  Baxt.  420;  35  Am.  Rep.  711;  Race  v.  OUlridge,  90 
111.  250;  32  Am.  Rep.  27. 

*  Murdock  V.  Dalby,  13  Mo.  App.  41;  Kidd  v.  Lester,  40  Ga.  231. 


§oo.>  OP  rROPKRTY   EXEMPT  FROM  EXECUTION.  673 

cient  pocaiiiaiy  ability  to  hire  an<.]  suiiport  scrvant=5 
would  be  entitled  to  exemption  rights  as  the  head  of  a 
familv,  ami  \vi)uld  lose  those  rights  when  tlie  deeadence 
of  her  fortune  made  it  impossible  longer  to  incur  such 
an  expenditure.  As  between  husband  and  wife,  he 
must  ordinarily  be  regarded  as  the  head  of  the  family. 
But  if  the  wife  becomes  in  fact  the  head  of  the  family, 
she  is  entitled  to  exemption  privileges  belonging  to 
that  position.  The  reasons  for  her  separation  from  her 
husband  will  not  be  considered.  Whether  he  aban- 
dons her  against  her  wish,  or  they  separate  by  mutual 
consent,  is  immaterial.  The  material  facts  in  respect 
to  her  right  to  be  treated  as  the  head  of  a  family  are 
that  she  is  living  separate  and  apart  from  her  hur>band, 
havin*T  the  charu:e  of  her  minor  children  or  others  de- 
pendent  on  her  for  support,  who  are  living  with  her  in 
the  family  relation,  and  looking  to  her  as  their  head. 
If  these  facts  exist,  she  is  the  head  of  a  family.^  One 
who  is  the  head  of  a  family  does  not  cease  to  be  so 
by  living  in  a  house  controlled  by  some  other  person. 
Hence  when  a  widow  and  her  children  go  to  live  with 
her  father,  she  does  not  lose  the  benefit  of  her  exemp- 
tion as  the  "head  of  a  family."^  One  who  becomes 
the  head  of  a  family  after  the  issue  and  before  the  levy 
of  an  execution  is  in  Alabama  entitled  to  avail  him- 
self of  the  exemption  law.^  Upon  the  decease  of  the 
husband,  the  widow,  who  thereby  becomes  charged 
with  the  care  and  maintenance  of  the  children,  suc- 
ceeds him  as  the  head  of  the  family.  The  exemption 
laws  were  designed  for  the  benefit  of  the  family,  rather 

*  Nash  V.  Norment,  5  Mo.  App.  545;  State  v.  Slater,  22  Mo.  4C4;  Kenley  v. 
Hudleson,  99  111.  500;  .39  Am.  Rep.  31;  People  v.  Stitt,  7  Brad.  App.  298; 
Parlet  v.  Stewart,  50  Miss.  717;  Fish  v.  Street,  27  Kan.  270. 

»  Bachman  v.  Crawford,  .3  Humph.  213;  39  Am.  Dec.  163. 

'  Watson  V.  Simpson,  5  Ala.  233. 


679  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §223 

more  than  for  the  benefit  of  its  head.  On  his  death, 
property  before  held  by  him  as  exempt  from  execu- 
tion retains  its  exempt  character  in  favor  of  his  widow, 
who  succeeds  to  his  exemption  rights  as  a  householder 
or  head  of  the  family.^ 

§  223.  Householders. — The  term  "householder"  is 
very  nearly  synonymous  with  the  phrase  "head  of  a 
family."  According  to  Webster,  the  lexicographer,  a 
householder  is  "the  master  or  chief  of  a  family;  one 
who  keeps  house  with  his  family."'  To  entitle  a  per- 
son to  exemption  as  a  householder,  it  is  by  no  means 
essential  that  he  should  be  living  with  his  family,  nor 
that  they  should  be  occupying  a  house.  Thus  in  New 
York,  one  Murray  absconded  to  avoid  his  creditors. 
His  family  had  commenced  to  move  from  their  former 
residence  to  the  house  of  his  wife's  father.  While  en 
route,  their  only  cow  was  seized  under  execution.  The 
plaintiff  in  execution  claimed  that,  under  the  circum- 
stances, Murray  was  not  a  householder  at  the  time  of 
the  levy  of  the  writ ;  but  the  court  said :  "  Murray  had 
gone  to  Ohio,  leaving  his  wife  and  children  living  to- 
gether as  a  family.  They  were  his  household  and  he 
was  their  householder.  To  say  that  a  family  while  in 
act  of  removal,  and  on  the  highway,  may  be  deprived 
of  their  bed  and  their  cow,  on  execution,  because  they 
did  not  for  the  time  inhabit  a  dwelling-house,  would  be 
a  perversion  of  the  statute.  So  long  as  they  remain 
together  as  a  family,  without  being  broken  up  and  in- 
corporated into  other  families,  the  privilege  remains. 
It  was  designed  as  a  protection  for  poor  and  destitute 
families;  and  the  forlorn  and  houseless  condition  of  this 

'  IJeckcr  v.  Becker,  47  Barb.  497. 
»  Bownc  V.  Witt,  19  Wend.  475. 


SC-J3  OF  PROPERTY  EXEMPT  FROM   EXECUTION.  680 

taniily.  in  tho  absence  of  the  liusband  and  fatlier,  gave 
tlu'ui  a  juHniliar  claim  to  tlio  benefit  of  tlio  statute."^ 
It  may  be  that  in  some  states,  one  wlio  j)a('k.s  up  liis 
gooils,  intending  to  remove  to  another  «tate,  loses  his 
riii^ht  to  exemption  as  a  householder."  But  it  is  quite 
certain  that  one  who  is  removing  from  one  part  of  a 
state  to  another  part,^  or  who  temporarily  ceases  keep- 
ing house,  and  therefore  stores  his  goods,*  or  who,  on 
account  of  domestic  or  other  difficulty,  temporarily 
abandons  his  family,^  is  still  entitled  to  exemption  as  a 
householder.  The  keeping,  occupying,  and  controlliDg 
a  house  may  perhaps  sometimes  entitle  a  person  to  be 
treated  as  a  householder  when  the  other  facts  do  not 
warrant  it.  This  is  unquestionably  true  in  Indiana. 
A  widower  is  a  householder  in  that  state  if  he  keeps 
house,  though  his  children  are  grown  and  have  left  him 
without  any  dependents,  nor  any  household  other  than 
his  employees  or  servants.^  Nor  is  a  bachelor  there 
denied  the  privileges  of  a  householder  if  he  keeps  house 
with  servants,  though  he  has  no  dependents  nor  rela- 
tives residing  with  him.^  While  mere  housekeeping, 
or  the  maintenance  and  mana^jfement  of  a  household  of 
servants  or  employees,  may  possibly  entitle  one  to  the 
title  and  privileges  of  a  householder,  it  is  quite  clear 
that  the  absence  of  housekeeping  will  not  necessarily 
deprive  one  of  the  title  of  householder.     It  may  be 

*  Woodward  v.  Murray,  18  Johns.  400.  The  absconding  of  the  husband 
does  not  forfeit  the  right  of  the  family  to  exemption.  BonncU  v.  Dunn,  5 
Dutch.  435. 

^  Anthony  v.  Wade,  1  Bush,  110. 

»  Mark  v.  State,  15  Ind.  98;  Davis  v.  Allen,  11  Ala.  104;  Pool  v.  Reid,  15 
Ala.  82G;  O'Donnell  v.  Segar,  25  Mich.  307. 

*  Griffin  i\  Sutherland,  14  Wend.  456. 

*  Carrington  v.  Herrin,  4  Bush,  624;  Norman  v.  Bellman,  10  Ind.  156. 
«  Bunnell  v.  Hay,  73  Ind.  452. 

^  Kelley  v.  McFadden,  80  Ind.  536. 


681  OF  PROPERTY  EXEMPT  FROM  EXECUTION".  §223 

that  some  householders  are  not  heads  of  famihes,  but 
all  heads  of  families  are  householders.  If  one  is  the 
head  of  a  family,  to  whose  support  he  contributes, 
he  is  a  householder,  though  he  has  no  house  of  his 
own,  and  lodges  and  boards  in  the  house  of  another 
person  whom  he  paj's  therefor.^  A  married  woman 
who  continues  to  provide  for  the  children  of  a  prior 
marriage  may  claim  exemption  as  a  householder.^  So 
also  may  a  father,  with  whom  reside  as  one  family  his 
indio"ent  dauGfhter  and  her  children.^  To  constitute  a 
householder,  it  is  not  necessary  that  the  relation  of 
husband  and  wife  or  of  parent  and  child  should  exist. 
A  man  living  with  his  sister,  they  jointly  contributing 
to  their  support,  is  a  householder;*  and  so  is  a  man 
who  rents  a  house,  hires  servants,  and  keeps  boarders.^ 
The  bad  character  of  a  defendant  cannot  deprive  him 
of  his  exemption  rights.  Hence  if  a  prostitute  "really 
had  a  family  which  she  was  bound  to  provide  for,  the 
fact  of  her  improper  mode  of  living  would  not  deprive 
her  of  a  right  to  which  she  was  otherwise  entitled."^ 
The  same  rule  prevails  in  the  case  of  an  unmarried  man 
and  woman,  and  tlieir  children  living  with  them  as  a 
family.  The  family  exists  in  fact,  if  not  in  law;  and 
there  is  at  least  a  moral  obligation  on  the  part  of  the 
man  to  care  for  his  illegitimate  issue.^ 

»  Lowry  v.  McAllister,  8G  lud.  543;  Astley  v.  Capron,  89  Ind.  1C7.  This 
rule  pro1>ably  doc^j  not  prevail  where  the  head  of  the  family  lias  come  from  an- 
other state,  and  occupies  a  room  here  at  the  sufiFcrance  of  another,  as  a  mere 
visitor  or  guest.  In  Huch  case  he  is  neither  a  resident  nor  the  head  of  a  family. 
Vede  V.  Koch,  27  111.  121). 

»  Brighani  v.  Bush,  33  Barh.  596. 

»  Blockwell  r.  Broughton,  50  Ha.  390. 

*  Graham  r.  Crockett,  18  Ind.  119. 

''  Hutchinson  v.  Chamberlain,  1 1  N.  Y.  Leg.  Obs.  248;  Van  Vechten  v.  Hall, 
14  How.  Pr.  436. 

*  liowman  r.  Quackenboss,  3  Code  R.  17. 
T  Bell  r.  Kcach,  80  Ky.  42. 


§•224  OF    rUOPKUrV    KXKMrr   FROM    EXECUTION.  GSC 

§224.  Teamster  —  Agriculturist.  "In  coiiiiuou 
speech,  a  teamster  i.s  owe  wlu)  diivi's  a  t»';iiu;  l)U<  in  Iho 
sense  of  the  statute,  every  oiu'  \\\u)  drives  a  team  is  not 
iieeessarily  a  teamster,  nor  is  he  lueessarily  not  a  team- 
ster unk'ss  he  drives  a  team  eontinually.  In  the  sense 
o\'  the  statute,  one  is  a  teamster  w  ho  is  ciiL^a^cd,  with 
liis  own  ti>am  or  ti'ams,  in  tlio  business  of  teamintTj, — 
that  is  to  say,  in  the  business  of  hauhnij^  freiu^lit  for 
other  parties  for  aeonsideration,  by  whicli  he  habitually 
supi)orts  himself  and  tamily,  if  he  has  one.  While  he 
need  not,  })erhaps,  drive  his  team  in  person,  yet  he  must 
b«.'  personally  engaged  in  the  business  of  teaming  habit- 
uallv,  and  tor  the  purpose  of  making  a  living  by  that 
business.  If  a  carpenter,  or  other  mechanic,  who 
occupies  his  time  in  labor  at  his  trade,  purchases  a  team 
or  teams,  and  also  carries  on  the  business  of  teaming 
by  the  employment  of  others,  he  docs  not  thereby  be- 
come a  teamster  in  the  sense  of  the  statute.  So  of  the 
miner,  farmer,  doctor,  and  minister."^  A  teamster  may, 
if  his  capital  or  credit  is  sufficient,  own  several  teams, 
and  may  employ  others  to  attend  to  the  manual  labor. 
He  need  not  personally  drive  cither  of  the  teams.  It 
is  suthcient  that  his  business  is  that  of  teaming.  If  he 
"owns  more  than  one  team,  that  is,  if  he  owns  more 
than  tw(j  horses  or  mules,  and  their  necessary  harness 
and  equipments,  and  more  than  one  wagon,  it  is  his 
right  and  privilege  under  the  law  to  select  and  designate 
two  animals  and  their  harness,  etc.,  and  one  wagon, 
suitable  for  use  therewith,  or  with  two  animals,  as  his 
exempt  property,  and  when  so  selected  and  pointed  out, 
the  law  will  recognize  and  protect  them  as  his  exempt 

'  Brusie  r.  Oriifith,  34  Cal.  302;  91  Am.  Doc.  G95.  Contracting  to  do  work 
which  will  recjuire  the  team  to  he  uscil  outside  of  the  state  ilous  not  affect  the 
teaouiter's  right  of  cxutziptiou.     Whicher  v.  Long,  1 1  Iowa,  48. 


683  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §224 

property,  provided  they  were  actually  in  use  by  such 
teamster  in  his  business  of  teaming,  by  which  he  earned 
his  living  at  the  time  of  the  levy  by  an  officer;  and 
such  selection  may  be  made  without  regard  to  the 
value  or  quality  of  the  property  selected."  ^  Under  the 
statute  of  California,  it  is  essential  that  the  person 
claiming  exemption  as  a  teamster  ''habitually  earn  his 
living  by  the  use  of  his  team.'"'  Therefore  the  fact  that 
the  claimant  is  eng^ao'ed  in  another  business,  as  where 
he  is  a  dealer  in  coal,  and  uses  his  team  in  hauling  coal 
to  his  place  of  business  and  in  delivering  it  to  customers, 
is  fatal  to  his  claim.^  If,  however,  he  is  enofaoced  in  no 
other  business,  he  does  not  lose  his  right  to  exemption 
as  a  teamster  or  hackman,  by  turning  his  horses  tem- 
porarily out  at  pasture  and  sending  his  hack  to  the  shop 
for  repairs.*  Some  exemptions  are  allowed  by  statute 
only  to  persons  engaged  in  agriculture,  or  "in  the 
science  of  agriculture."  An  as^riculturist  is  a  husband- 
man;  one  engaged  in  the  tillage  of  the  ground,  the 
raisinsf,  manaij^inLf,  and  fattenino;  of  live-stock,  or  the 
management  of  a  dairy.  The  question  most  difficult 
of  solution  is  not  with  respect  to  the  character,  but  to 
the  amount  of  business  required  to  constitute  an  agri- 
culturist. If  a  man  is  engaged  in  another  business,  and 
merely  cultivates  a  small  tract  of  land  adjacent  to  his 
dwelling,  it  seems  clear  that  he  is  not  engaged  in  agri- 
culture.^ On  the  other  hand,  where  it  appeared  that 
the  claimant  farmed  about  forty-five  acres  of  land,  rais- 
ing buckwheat,  potatoes,  corn,  oats,  and  some  wheat,  he 
was  held  to  be  one  "  engaged  in  the  scienpe  of  agricul- 
ture, though  he  lived  at  another  place,  at  which  ho  kept 

>  EMcr  ?J.  WilliaiiiH,  10  Nov.  420.  ♦  Forsyth  v.  Bower,  54  Cal.  6.39. 

'  CcmIc  Civ.  I'roc,  Hcc.  G'.K).  '  Simoaa  v.  Lovcll,  7  Jlcibk.  510. 

*  Dove  ^•.  Nuiimi,  02  Cal.  400. 


§  !._.> 


OF  TROPERTY  EXEMPT  FROM  EXECUTION.  684 


a  boardinu:-house,  and  sometimes  worked  as  a  tailor. 
The  views  of  the  court  were  as  follows:  "A  person  is 
'actuall}''  engaged  in  the  science  of  agriculture'  when 
he  derives  the  support  of  himself  and  family,  in  whole 
or  in  part,  from  the  tillage  and  cultivation  of  fields. 
He  nmst  cultivate  something  more  than  a  garden, 
though  it  mav  be  much  less  than  a  farm.  If  the  area 
cultivated  can  be  called  a  field,  it  is  agriculture,  as  well 
in  contemplation  of  law  as  in  the  etymology  of  the 
word.  And  if  this  condition  be  fulfilled,  the  uniting  of 
any  other  business,  not  inconsistent  with  the  pursuit  of 
agriculture,  does  not  take  away  the  protection  of  the 
act.  The  keeping  a  tavern  and  boarding-house,  and 
the  working  at  his  trade  as  a  tailor,  in  the  intervals 
of  the  seasons  for  farming,  did  not  divest  Lewis  of  the 
benefits  which  the  statute  was  intended  to  secure  to 
him.  The  act  extends  its  protection  over  the  property 
of  the  agriculturist  during  the  winter,  when  he  is  obliged 
to  suspend  his  labors  in  the  field,  as  effectually  as  in 
the  summer,  while  actively  engaged  in  rearing  or  har- 
vesting crops."  ^  One  who  is  a  farmer  is  entitled  to  ex- 
emption as  such,  though  he  owns  no  farm  and  has  none 
leased,  if  he  kas  not  abandoned  the  business  of  farming.^ 

§  225.    A  Person  may  Exercise  Two  Trades;  as, 

when  he  obtains  his  livelihood  from  a  farm,  and  also 
from  a  workshop.  In  this  case  the  question  arising  is, 
whether  he  shall  be  allowed  exemption  as  a  farmer  or 
as  a  mechanic,  or  as  both.  In  Michigan  the  question 
is  answered  by  a  statute  allowing  exemption  in  the 
business  in  which  the  debtor  is  principally  engaged.^ 

1  Springer  v.  Lewis,  22  Pa.  St.  193. 
^  Hickman  v.  Cruise,  72  Iowa,  528. 

3  Morrill  u. -Seymour,  3  Mich.  G4;  Kenyon  v.  Baker,  16  Mich.  373;  97  Am. 
Dec.  158. 


685  OF  PROPERTY  EXEMPT  FROM  EXECUTIOX.  §225 

He  is  deemed  to  be  principally  engaged  in  that  busi- 
ness to  which  he  devotes  the  most  time,  although  it 
may  yield  less  profit  than  some  of  his  other  occupa- 
tions/ Where  the  statute  is  not  so  specific  as  that  of 
Michigan,  it  has  been  held  that  the  debtor  cannot,  by 
multiplying  his  employments,  "claim  cumulatively  sev- 
eral exemptions,  created  by  statute  for  several  distinct 
employments.  Thus  one  person  cannot  claim  the  ex- 
emption of  his  library  and  office  furniture  as  a  profes- 
sional man,  and  at  the  same  time  have  exempted  to 
him  tools  and  implements  for  the  purpose  of  carry- 
ing on  his  trade  or  business  as  a  mechanic  or  miner. 
The  mere  fact,  however,  that  a  debtor  carries  on  two 
or  more  trades  or  professions  at  the  same  time  does 
not  deprive  him  of  all  exemptions.  If  he  has  two 
separate  pursuits,  the  exempted  articles  must  belong 
to  him  in  his  main  or  principal  business.  In  other 
words,  to  the  business  in  which  he  is  principally  en- 
gaged." ^  In  another  case  it  was  said  that  the  debtor 
has  the  right  to  elect  under  which  trade  he  will  claim. ^ 
An  agriculturist  may  employ  a  portion  of  his  time  in 
some  other  business  without  losing  his  right  of  ex- 
emption as  an  agriculturist.*  If  a  man  is  engaged  in 
the  business  of  editing  and  publishing  a  newspaper, 
carrying  on  a  job  printing-office,  also  in  the  loan,  land, 
and  insurance  business,  and  is  also  a  justice  of  the  peace, 
he  is  entitled  to  hold  as  exempt  his  printing-press  and 
type  used  in  printing  his  newspaper  if  that  is  his  prin- 
cipal business.^     In  many  states  exemptions  are  allowed 

1  Smalley  v.  Masten,  8  Mich.  529;  77  Am.  Dec.  4G7. 

2  Jenkins  v.  iSIcNall,  27  Kan.  532;  41  Am.  Rep.  422;  Bevitt  v.  Crandall,  19 
Wis.  5.31. 

*  Lockwood  V.  Younglove,  27  Barb.  505. 

♦  Springer  v.  Lewis,  22  Pa.  St.  191. 

"  Bliss  V.  Vedder,  34  Kau.  57;  55  Am.  Rep.  237. 


§i::5  OF  PROPE^.TY   EXEMPT  FROM  EXECUTION.  086 

to  all  jH"^rsons,  or  to  all  heads  of  families,  and  additional 
CNcniptions  are  provided  for  persons  filling  certain 
trades.  In  such  cases,  while  a  man  cannot  claim  ex- 
emption for  more  than  one  trade  or  calling,  he  may  have 
the  exemption  provided  for  heads  of  families,  and  also 
the  exemption  allowed  to  persons  of  his  calling.^  The 
rule  tliat  one  enijfaged  in  distinct  and  diverse  callin^fs 
cannot  cumulate  exemptions  on  account  thereof  meets 
with  o-eneral  concurrence.  But  if  the  different  callinofs 
are  of  the  same  nature,  as  where  they  both  require  the 
use  of  mecahanical  tools,  the  application  of  the  rule 
has  been  frequently  denied.^  Thus  in  Massachusetts, 
where  it  was  claimed  that  a  man  could  not  have  al- 
lowed him,  as  exempt,  stock  in  trade  as  a  painter,  and 
also  as  a  carriage-maker,  the  court  denied  the  claim, 
saying:  "There  is  no  settled  rule  of  division  or  dis- 
tinction between  different  trades  in  this  country,  and 
changes  are  in  constant  progress  by  which  the  divisions 
of  labor  and  trade  are  multiplying,  especially  in  large 
towns  where  business  is  prosecuted  on  a  large  scale. 
The  business  of  house-building,  for  example,  is  divided 
into  a  great  number  of  separate  trades;  and  if  the  dis- 
tinction contended  for  here  were  to  be  adopted,  the 
tools  of  a  joiner  used  in  making  windows  would  not 
be  exempted  if  he  was  also  engaged  in  making  stairs, 
and  possessed  tools  adapted  to  that  business.  This 
view  of  the  statute  was  taken  in  Pierce  v.  Gray,  7 
Gray,  67,  where  it  was  held  that  one  whose  general 
business  was  the  ice  business,  and  whose  tools  of  trade 
in  that  business  were  exempt,  might  also  hold  as  ex- 
empt his  tools  for  farming  or  gardening."^    Indeed,  the 

*  Harrison  v.  Martin,  7  Mo.  286. 

-  Stewart  v.  Welton,  32  Mich.  56. 

*  Eager  v.  Taylor,  9  Allen,  156.     See  also  Patten  v.  Smith,  4  Conn.  455. 


GST  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §226 

case  of  Pierce  v.  Gray,  here  referred  to,  seems  co  be 
wholly  irreconcilable  with  the  rule.  But  in  that  case 
the  principal  business  of  the  defendant  was  the  ice 
business.  The  only  articles  held  to  be  exempt  which 
were  not  used  in  that  business  were  a  shovel,  pickax, 
and  a  dung-fork  with  which  defendant  was  accustomed 
to  work  in  the  summer  time  in  and  about  his  garden 
and  stable.  Without  adverting  to  the  debtor's  dual 
occupation,  if  merely  attending  to  his  stable  and  garden 
can  be  called  an  occupation,  the  court  said:  "In  the 
country  farming  or  gardening  is  or  ought  to  be  part 
of  every  man's  business;  and  the  soundest  policy,  as 
well  as  the  language  of  the  statute,  forbids  the  taking 
of  any  of  the  tools  so  necessary  to  all  good  husbandry.'" 

THIRD. OF    VARIOUS    CLASSES    OF    EXEMPT    PROPERTY. 

§  226.  Tools.  —  In  most  of  the  states,  tools  are  ex- 
empt from  execution  when  owned  by  the  defendant, 
and  used  by  him  in  earning  his  livehhood.  By  some 
of  the  statutes,  the  exemption  is  confined  to  the  tools 
of  mechanics,  while  in  others  it  is  extended  to  every 
debtor  in  whose  trade  or  occupation  tools  are  necessary. 
The  object  of  these  statutes  is  to  save  to  the  debtor 
the  means  of  earning  his  support.  Hence  the  debtor 
cannot  claim  as  exempt  tools  not  necessary  to  his 
trade;'  nor  is  he  entitled  to  his  exemption  after  having 
abandoned  his  trade;'  nor  where  he  has  never  exer- 
cised the  trade  for  which  the  tools  claimed  are  designed.* 
Thus  where  one's  business  was  that  of  a  hotel-keeper, 

^  Pierce  v.  Gray,  7  Gray,  67. 

*  Grimes  v.  Bryne,  2  Minn.  104. 

»  Davis  V.  Wood,  7  Mo.  1G2;  Atwood  r.  De  Forest,  19  Conn.  518;  Norris  v. 
Hoitt,  18  N.  H.  196;  Willis  v.  Morris,  66  Tex.  633;  59  Am.  Rep.  634 

*  Atwood  V.  De  Forest.  19  Conn.  513. 


S226  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  688 

he  is  not  entitled  to  liolcl  as  exempt  a  grain-drill  which 
he  had  been  in  the  luihit  of  hiring  to  contractv^rs  and 
others  who  were  putting  in  wheat.^  One  who  has 
abandoned  a  trade  or  calling  is  no  longer  entitled  to 
the  exemptions  attaching  thereto.  A  cessation  is  not 
necessaril}^  and  perhaps  not  ordinarily,  an  abandonment. 
With  respect  to  tools,  the  statute  does  not  require  that 
the  claimant  should  habitually  earn  his  living  with 
them."  He  may  engage  in  other  business  not  amount- 
ing to  any  abandonment  of  his  trade.  If  he  is  a  mem- 
ber of  a  manufacturing  firm,  he  does  not  lose  his  right 
to  claim  his  tools  as  exempt  by  traveling  in  the  in- 
terest of  the  firm.^  So  if  he  fails  in  business,  makes 
an  assignment  for  the  benefit  of  creditors,  and  is,  in 
consequence  thereof,  idle  and  without  employment,  he 
cannot  on  that  account,  so  long  as  he  engages  in  no 
other  business,  be  properly  regarded  as  having  aban- 
doned the  trade  in  which  he  was  engaged  at  the 
time  of  such  assignment.*  His  enlistment  as  a  volun- 
teer soldier  in  time  of  war,  placing  his  tools  with  a 
friend  for  safe-keeping,  is  not  an  abandonment  of  his 
trade. '^  "  The  distinction  between  withdrawing  from 
the  pursuit  of  a  particular  trade  or  occupation  with  a 
determination  never  to  resume  it,  and  a  temporary  di- 
version from  its  prosecution,  while  engaged  in  conduct- 
ing some  other  business  or  enterprise  not  intended  to 
be  of  permanent  or  durable  continuance,  is  clear  and 
definite.  To  secure  himself  the  privileges  and  benefits 
intended  to  be  conferred  by  the  provisions  of  the  statute, 

1  Reed  v.  Cooper,  .30  Kau.  574. 

*  Perkins  v.  Wisuer,  9  Iowa,  320. 

8  Willis  V.  Morris,  (50  Tex.  033;  59  Am.  Rep.  G34. 

*  Caswell  V.  Keith,  12  Gray,  351;  Harris  v.  Haynes,  30  Mich.  140 

*  Abrains  v.  Pender,  Busb.  200. 


C89  OF   PROPERTY  EXEMPT  FROM  EXECUTION.  §  22G 

an  artisan  is  not  required  to  ply  his  trade  without  a 
possible  intermission  or  the  occurrence  of  any  interrup- 
tion in  its  pursuit.  If,  for  instance,  owing  to  the  usual 
stacrnation  of  business,  he  cannot  for  a  season  find  re- 
munerative  employment  in  carrying  it  on,  or  if  from 
personal  infirmity  or  other  intervening  impediment  it 
becomes  necessary  or  expedient  that  he  should  resort 
temporarily  to  some  other  department  of  industry  to  ob- 
tain means  of  supporting  himself  and  his  family,  he  can- 
not, as  long  as  he  entertains  an  intention  to  return  as  soon 
as  circumstances  will  permit  to  occupation  and  employ- 
ment in  his  trade,  be  said  to  have  given  up  or  abandoned 
it.  The  tools  and  implements  requisite  to  carry  it  on  in 
the  usual  and  ordinary  manner  in  which  such  business  is 
conducted,  are  in  the  mean  time  still  things  of  necessity 
to  him  within  the  meanino"  of  the  law."^  The  defend- 
ant  cannot,  as  a  general  rule,  claim  more  tools  than 
are  necessary  for  his  own  personal  use.  Hence  if  a 
man  engages  in  manufactures  in  which  it  is  necessary 
that  he  should  own  a  large  amount  of  tools  to  be  used 
by  his  employees,  these  are  not  usually  regarded  as 
exempt.'^  So  where  a  man  owns  tools,  and  not  being 
a  mechanic  employs  another  to  use  them,  whether  in 
a  factory  or  not,  they  are  not  exempt.^  But  tlie  fact 
that  a  mechanic  employs  an  apprentice  or  assistant 
does  not  necessarily  make  him  a  manufacturer,  nor 
does  it  necessarily  follow  that  the  tools  used  by  the  as- 
sistant are  subject  to  execution ;  for  the  tools  used  by 
the  principal  and  assistant  may  not,  in  the  aggregate, 
exceed  the  number  ordinarily  required  in  carrying  on 

1  Caawell  v.  Keith,  12  Gray,  351. 

2  Richie  v.  McCauley,  4  Pa.  St.  472;  Smith  v.  Gibbs,  6  Gray,  298;  Atwood 
V.  De  Forest;  19  Conn.  513;  Sceley  v.  Gwillim,  40  Conn.  lOG. 

*  Abercrotnbie  v.  Alderson,  9  Ala.  981. 
Vol.  I.— 44 


§2:G  of  TROPERTY  exempt  from  execution.  690 

the  trade.  Thus  in  Massaclmsetts,  where  a  jewelcT 
carry  inn*  on  his  trade  with  the  aid  of  an  apj)rentit'e, 
and  that  portion  of  the  tools  used  by  the  latter  was 
levied  upon,  the  court  held  them  to  be  exempt,  saying: 
*•  The  exemption  is  not  limited  merely  to  the  tools  used 
by  the  tradesman  with  his  own  hands,  but  comprises 
such,  in  character  and  amount,  as  are  necessary  to  en- 
able liim  to  prosecute  his  appropriate  business  in  a 
convenient  and  usual  manner;  and  the  only  rule  by 
which  it  can  be  restricted  is  that  of  good  sense  and  dis- 
creti(^n,  in  reference  to  the  circumstances  of  each  par- 
ticular case.  It  would  be  too  narrow  a  construction  of 
a  humane  and  beneficial  statute  to  deny  to  tradesmen 
— whose  occupation  can  hardly  be  prosecuted  at  all, 
much  less  to  any  profitable  end,  without  the  aid  of  as- 
sistants, as  journeymen  and  apprentices  —  the  neces- 
sar}'  means  of  their  employment."^ 

In  interpreting  a  statute  exempting  "such  tools  as 
may  be  necessary  for  upholding  life,"  the  supreme 
court  of  Vermont  employed  the  followintj  lano-uacre : 
"The  word  'tools,'  in  this  statute,  has  long  been  held 
to  extend  to  such  farming  tools'  as  are  used  by  hand, 
and  to  include  hoes,  axes,  pitchforks,  shovels,  spades, 
scythes,  snaths,  cradles,  dung-forks,  and  other  tools  of 
that  character.  But  it  is  not  to  include  machinery,  or 
implements  used  by  oxen  and  horses,  as  carts,  plows, 
harrows,  mowers  and  reapers,  etc.  We  think  this  is 
the  sound  and  reasonable  construction  of  the  statute. 
And  we  see  no  reason  why  one  who  carries  on  farming 
to  any  extent  should  not  have  an  adze,  broad-ax, 
augers,  and  such  simj^le  mechanical  tools  exempt  from 

1  Howard  v.  Williams,  2  Pick.  S.".;  Willis  v.  Morris,  6(1  Tex.  633;  59  Am. 
Rep.  G:U.  The  tools  of  a  master  workman  are  exempt.  Parkersou  v.  Wight- 
Diau,  4  Strob.  3G3. 


691  OF  PROPERTY  LXEMPT  FROM  EXECUTION.  §226 

attachment  as  are  indispensable  for  repairing  farming 
imjilements,  and  which  he  procures  for  his  own  use, 
and  which  he  in  fact  uses  as  much  as  a  mechanic. 
He  is  or  may  be  compelled  to  perform  such  mechanical 
work,  in  order  to  get  along  with  his  ordinary  farming 
operations,  and  if  so,  he  must  have  the  tools,  and 
should  hold  them  exempt  from  execution."  ^  The  su- 
preme court  of  New  HampvShire  said  that:  "  The  Word 
'  tools,'  as  used  in  these  statutes,  is  presumed  to  embrace 
such  implements  of  husbandry,  or  of  manual  labor,  as 
are  usually  employed  in  and  are  appropriate  to  the  busi- 
ness of  the  several  trades  or  classes  of  the  laborinof 
community,  and  according  to  the  wants  of  their  respect- 
ive employments  or  professions."^  The  word  "tool" 
is  usually  understood  as  designating  something  of  a 
simple  nature,  and  comparatively  free  from  complica- 
tion. Hence  though  a  machine  may  possibly  be  so 
simple  in  its  construction  and  operation  as  to  be  exempt 
as  a  "tool,"^  this  is  very  rarely  the  case.  In  the  vast 
majority  of  cases  where  the  question  has  arisen  for 
decision,  machines  have  been  held  subject  to  execution.* 
Where  the  statute  exempted  "  the  proper  tools  and 
implements  of  a  farmer,"  the  court  held  that  the  statute 

»  Garrett  v.  Patchin,  29  Vt.  248;  70  Am.  Dec.  414. 

*  WilkinsoQ  v.  Alley,  45  N.  H.  551.  "Working  tools  "  include,  in  addition 
to  the  tools  in  ordinary  use  by  a  mechanic,  such  other  contrivances  as  the  de- 
fendant may  have  adopted  to  facilitate  or  diminish  hfj  labor.  Healy  v.  Bate- 
maix,  2  R.  I.  454;  60  Am.  Dec.  94.  The  tools,  implements,  and  fixtures  of  a 
milliner  are  exempt.     Woods  v.  Keyes,  14  Allen,  236;  92  Am.  Dec.  766. 

^  Daniels  v.  Hay  ward,  5  Allen,  4.3;  78  Am.  Dec.  731. 

♦  Henry  i'.  Sheldon,  35  Vt.  427;  82  Am.  Dec.  644;  Kilburn  v.  Deming,  3 
Vt.  404;  21  Am.  Dec.  543;  Richie  v.  McCauley,  4  Pa.  St.  471;  Atwood  v.  De 
Forest,  19  Conn.  518;  Secley  v.  Gwillim,  40'  Conn.  lOG;  Kilburn  v.  Demming, 
2  Vt.  404;  21  Am.  Dec.  543;  Batchelder  v.  Shaplcigh,  10  Me.  135;  25  Am.  Dec. 
213;  Knox  v.  Chadboume,  28  Me.  160;  48  Am.  Dec.  487.  A  weaver's  loom 
was  held  to  be  a  tool  in  McDowell  v.  Shotwell,  2  Wliart.  26.  A  gin  and  grist- 
mill are  not  exempt  as  tools.     Cullers  v.  James,  66  Tex.  494. 


§2-2G  OF  rROrERTY  EXEMPT  FROM  EXECUTION.  092 

applied  only  to  the  ordinary  and  usual  implements  of 
husbandry,  and  therefore  that  it  did  not  exem[)t  tlirash- 
ing-  machines.^  In  some  instances  printing-presses  and 
type  used  by  a  practical  printer  have  been  held  to  be 
tools  of  his  trade;"'  in  others  a  different  conclusion  has 
been  sustained.^  In  Now  York  it  has  been  held  that 
a  watch  ma}-,  in  some  instances,  be  exempt  as  a  work- 
ing tool  or  as  necessary  household  furniture.*  The 
chair  and  foot-rest  used  by  a  barber  have  been  decided 
to  be  exempt  as  tools  of  his  trade  ;'^'  but  it  is  held  other- 
wise in  regard  to  the  horse  of  a  farmer"  and  the  library 
of  a  lawyer." 

The  question  frequently  arises  whether,  under  a 
statute  exempting  mechanical  tools,  or  the  tools  of  a 
mechanic,  the  instruments  of  a  professional  man  are 
protected  from  execution.  In  New  York  surgical 
instruments  have  been  exempted  as  tools.^  In  Michi- 
gan, in  construing  a  statute  exempting  "mechanical 
tools,"  and  determining  whether  it  applied  to  the  tools 
of  a  dentist,  the  supreme  court  said:  "A  dentist  in  one 
sense  is  a  professional  man,  but  in  another  sense  his 
calling  is  mainly  mechanical,  and  the  tools  which  he 
employs  are  used  in  mechanical  operations.     Indeed, 

»  Meyer  v.  Meyer,  23  Iowa,  359;  92  Am.  Dec.  432;  Ford  v.  Johnson,  34 
Barb.  3G4. 

2  Patten  v.  Smith,  4  Conn.  450;  10  Am.  Dec.  16G;  Sallee  v.  Waters,  17  Ala. 
482;  Pratlierr.  Bobo,  15  La.  Ann.  524. 

'  Spooner  v.  Fletcher,  3  Vt.  133;  21  Am.  Dec.  599;  Frantz  v.  Dobson,  04 
Miss.  C31;  GO  Am.  Rep.  GS;  Danforth  v.  Woodward,  10  Pick.  423;  20  Am.  Dec. 
531;  Buckingliam  v.  Billings,  13  Mass.  82. 

*  Bitting  V.  Vandenburgh,  17  IIow.  Pr.  80.  See  also  Rothschild  v.  Boelter, 
18  Minn.  3G1. 

^  Allen  V.  Thompson,  45  Vt.  472. 

^  Wallace  v.  Collins,  5  Ark.  41;  39  Am.  Dec.  359;  contra,  as  to  doctor's  horse 
and  buggy,  Richards  v.  Hubbard,  59  N.  H.  158;  47  Am.  Rep.  188. 

'  Lenoir  v.  Weeks,  20  Ga.  59G. 

^  RobLosou's  Case,  3  Abb.  Pr.  406. 


693  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §226 

dentistr}^  was  formerly  purely  mechanical,  and  instruc- 
tion in  it  scarcely  went  beyond  manual  dexterity  in  the 
use  of  tools;  and  a  knowledge  of  the  human  system 
generally,  and  of  the  diseases  which  might  affect  the 
teeth,  and  render  an  operation  important,  was  by  no 
means  considered  necessary.  The  operations  of  the 
dentist  are  still  for  the  most  part  mechanical,  and  so 
far  as  tools  are  employed,  thej^  are  purely  so;  and  we 
could  not  exclude  these  tools  from  the  exemption  which 
the  statute  makes  without  confining  the  construction  of 
the  statute  within  limits  not  justified  by  the  words  em- 
ployed."^ .  But  in  Mississippi,  where  a  statute  provided 
for  the  exemption  of  the  "tools  of  a  mechanic  necessary 
for  carrying  on  his  trade,"  the  court  gave  the  following 
as  its  interpretation  of  the  statute:  "A  dentist  cannot 
be  properly  denominated  a  'mechanic'  It  is  true  that 
the  practice  of  his  art  requires  the  use  of  instruments 
for  manual  operation,  and  that  much  of  it  consists  in 
manual  operation;  but  it  also  involves  a  knowledge  of 
the  physiology  of  the  teeth,  which  cannot  be  acquired 
but  by  a  proper  course  of  study;  and  this  is  taught  by 
learned  treatises  upon  the  subject,  and  as  a  distinct, 
though  limited,  department  of  the  medical  art,  in  in- 
stitutions established  for  the  purpose.  It  requires  both 
science  and  skill ;  and  if  such  persons  could  be  included 
in  the  denomination  of  'mechanics,'  because  their  pur- 
suit required  the  use  of  mechanical  instruments  and 
skill  in  manual  operation,  the  same  reason  would  in- 
clude general  surgeons  under  the  same  denomination; 
because  the  practice  of  their  profession  depends  in  a 
great  degree  upon  similar  instruments  and  operative 
skill.     Nor  could  such  a  pursuit  properly  be  said  to  be 

>  Maxon  v.  Perrott,  17  Mich.  332;  97  Am.  Dec.  191.     The  instruments  of  a 
dentist  are  exempt  in  Louisiana.     Duperron  v.  Communy,  6  La.  Ann.  789. 


§226a  OF  PROPERTY  EXEMPT  FR0:M  EXECUTION.  G94 

a  'trade.'  Tliat  term  is  defined  to  denote  'the  business 
or  occupation  which  a  person  has  learned,  and  which  ho 
carries  on  for  procuring  subsistence  or  for  profit,  —  par- 
ticularly a  mechanical  employment,  distinguished  from 
the  liberal  arts  and  learned  professions,  and  I'rom  agri- 
culture.' It  is  manifest  that  a  pursuit  requiring  a  cor- 
rect knowledge  of  the  anatomy  and  physiology  of  a 
part  of  the  human  body,  as  well  as  mechanical  skill  in 
the  use  of  the  necessary  instruments,  could  not  be  prop- 
erly denominated  a  trade."  ^ 

A  photographer  has  been  held  not  to  be  a  mechanic, 
and  therefore  not  entitled  to  the  exemptions  of  a  mc*- 
chanic.  "The  photographer  is  an  artist,  not  an  artisan, 
who  takes  impressions  or  likenesses  of  things  and  per- 
sons on  prepared  plates  or  surfaces.  He  is  no  more  a 
mechanic  than  the  painter  who,  by  means  of  his  pig- 
ments, covers  his  canvas  with  the  glaring  images  of 
natural  objects.  And  his  tent,  bins,  camera-stand, 
camera-box,  head-rest,  bath-holder,  etc.,  are  no  more 
tools,  within  the  meaning  of  the  exemption  laws,  than  the 
tent,  stool,  easel,  hand-rest,  brushes,  pigment-box,  and 
paints,  glaze,  etc.,  of  the  painter.  The  exemption  was 
not  intended  to  extend  to  these  artists,  and  their  tools 
of  trade."  ^  The  building  in  which  a  photographer 
carries  on  his  business,  though  personal  property,  is  not 
a  "tool,"  or  "instrument."^ 

§  226  a.  Implements,  Utensils,  etc. — In  some  of  the 
statutes  of  exemptions  words  are  used  nearly  synony- 

^  Whitcomb  v.  Reid,  31  Miss.  567;  66  Am.  Dec.  579.  A  person  engaged  in 
the  business  of  a  merchant  is  not  entitled  to  exemption  of  a  wagon  as  a  tool  for 
carrying  on  his  business.  Gibson  v.  Gibbs,  9  Gray,  62;  Wilson  v,  Elliott,  7 
Gray,  69. 

^  Story  V.  Walker,  11  Lea,  517;  47  Am.  Rep.  305. 

'  Holden  v.  Stranahan,  48  Iowa,  70. 


695  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §226a 

mous  with  the  word  "tools,"  and  yet  apparently  of  a  more 
extensive  sigjnification.  Thus  in  some  statutes  "  farmino- 
utensils  or  implements  of  husbandry,"  the  tools  or  im- 
plements of  a  mechanic  or  artisan,  are  exempted;^  in 
others  the  exemption  is  of  "the  proper  tools  and  imple- 
ments of  a  farmer,"  or  "the  proper  tools,  instruments, 
or  books  of  the  debtor,  if  a  farmer,  mechanic,  surveyor, 
clergyman,  lawyer,  physician,  teacher,  or  professor,"' 
or  "  necessary  tools  and  implements  of  any,  mechanic 
miner,  or  other  person,  used  and  kept  for  the  purpose  Of 
carrying  on  his  trade  or  business."^  So  far  as  we  are 
•aware,  none  of  the  courts  have  undertaken  to  define  the 
word  "implements"  as  used  in  these  statutes.  The  lexi- 
cographers define  it  as  "whatever  may  supply  a  want; 
especially  an  instrument  or  utensil  as  supplying  a 
requisite  to  an  end;  as  the  implements  of  trade,  of  hus- 
bandry, or  of  war";  and  a  utensil  they  declare  to  be 
"that  which  is  used;  an  instrument,  an  implement; 
especially  an  instrument  or  vessel  used  in  a  kitchen,  or 
in  domestic  and  farming  business."  By  the  courts  these 
words  are  accorded  a  broad  signification,  and  exempt 
man}^  things  which  are  not  tools.  Thus  statutes  ex- 
empting implements  or  utensils  have  been  adjudged  to 
exempt  a  printing-press,  type,  and  other  articles  used  in 
publishing  a  newspaper,*  a  piano  used  by  a  music  teacher, 
and  upon  which  she  relied  for  support,^  a  mower  suit- 
able for  use  by  a  farmer,^  a  lamp  and  show-cases  used 
by  a  mechanic,^  articles  used  by  the  owner  in  makino- 

1  Code  Civ.  Proc.  Cal.,  sec.  690;  Elder  v.  Williams,  IG  Nev.  421. 

2  Code  Iowa,  sec.  3072. 

»  Blis3  V.  Vedder,  34  Kan.  59;  55  Am.  Rep.  2.37. 

*  Blis.9  V.  Vcddcr,  34  Kan.  59;  55  Am.  Rep.  237;  Sallee  v.  Waters,  17  Ala. 
482;  Green  v.  Raymond,  58  Tex.  80;  4-4  Am.  Rep.  601, 

*  Amend  v.  Murphy,  69  111.  3:J7. 

*  Humphreys  v.  Taylor,  45  Wis.  251;  30  Am.  Rep.  738. 
^  Bequillard  v.  Bartlett,  19  Kan.  385;  27  Am.  Rep.  120. 


§226a  OF  TROPERTY  EXEMPT  FROM  EXECUTION.  C96 

cheese-vats,  cheese-presses,  curd-knives,  cheese-hoops, 
and  hoisting  apparatus,^  a  clock,  stove,  screen,  pitcher, 
and  table  coverot'a  milliner,  necessary  for  carrying  on  her 
business,"  a  so^Ying-machinc,^  various  kinds  of  musical 
instruments."*  In  fact,  there  seems  to  be  no  limitation  of 
the  things  which  maybe  held  exempt  as  implements, save 
that  of  necessity.  If  they  are  necessary  in  the  debtor's 
trade  or  calling,  they  are  exempt,  though  they  are  not 
mere  tools,  but  are  complicated  and  expensive  machinery. 
Thrashing  machines  have  repeatedly  been  adjudged  not 
exempt,  but  solely  because  the  evidence  showed  that 
the  particular  machine  in  controversy  was  chiefly  used* 
in  working:  or  thrasliinsc  for  others  than  the  owner.  In 
the  most  recent  decision  on  this  topic  the  court  said : 
"In  our  opinion,  the  legislature  meant  by  the  words, 
'the  farming  utensils  or  implements  of  husbandry  of 
the  judgment  debtor,'  such  utensils  or  implements  as 
are  needed  and  used  by  the  farmer  in  conducting  his 
own  farming  operations;  and  it  was  not  intended  that 
all  farming  machinery  which  a  farmer  may  own  should 
be  exempt,  because,  while  he  uses  it  chiefly  by  renting 
it  out,  or  in  doing  work  on  others'  farms  for  hire,  he 
still  uses  it  to  a  small  extent  on  his  own  land.  To  hold 
otherwise  would  enable  the  farmer  who  cultivates  forty 
acres  to  invest  a  large  amount  of  money  in  expensive 
implements,  and  to  hold  them  free  and  clear  of  his 
creditors,  though  they  were  used  but  for  a  day  on  his 
own  land,  and  for  all  the  balance  of  the  year  were  rented 
or  hired  out  to  others.  A  reasonable  construction 
should  be  given  to  the  statute,  and  not  one  which  would 

>  Fish  V.  Street,  27  Kan.  270. 
2  Woods  V.  Keyes,  14  Allen,  236;  92  Am.  Dec.  765. 
^  Poiyner  v.  Wliicher,  6  Allen,  294. 

*  Baker  v.  Willis,  12.3  Mass.  195;  25  Am.  Rep.  61;  Goddard  v.  Chaffee,  2 
Allen,  395;  79  Am.  Dec.  796. 


697  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §227 

pervert  its  benevolent  design,  and  enable  gross  frauds 
to  be  perpetrated  under  color  of  law."  ^ 

§  227.  A  Team,  according  to  the  definition  given  by 
Webster,  is  "two  or  more  horses,  oxen,  or  other  beasts, 
harnessed  together  to  the  same  vehicle,  for  drawing." 
This  definition  does  not,  in  all  respects,  coincide  with 
that  which  has  been  given  to  the  word  in  the  various 
decisions  made  by  the  courts  in  interpreting  the  differ- 
ent exemption  statutes.  In  the  first  place,  we  know  of 
no  instance  in  which  the  debtor  has  successfully  claimed 
more  than  two  beasts  as  his  exempt  team.  In  the  sec- 
ond place,  it  is  quite  certain,  under  these  decisions,  that 
one  beast  may  constitute  a  team,  and  may  be  exempt 
from  execution,  where  it  is  used  by  the  defendant  for 
tiie  same  purposes  for  which  he  w^ould  use  a  team  of 
two  beasts,  if  he  were  so  fortunate  as  to  possess  that 
number,''^  So  where  the  law  exempts  a  "yoke  of  oxen," 
the  judges  will  exempt  a  single  ox  or  bull,  if  he  is 
broken  to  harness,  or  otherwise  employed  to  assist  the 
defendant  for  the  purposes  for  which  a  yoke  of  oxen 
would  be  used,^  Nor  need  he  be  broken,  if  purchased 
for  the  purpose  of  being  broken  and  used  as  a  part  of  a 
team.  Manifestly,  if  the  debtor  is  to  be  allowed  a  team, 
the  law  will  not  insist  on  his  purchasing  it  already 
broken,  but  will  allow  him  to  proceed  in  the  manner 
which  will  most  accord  with  his  impoverished  circum- 
stances, to  wit:  by  procuring  unbroken  animals  and 
converting  them  into  a  useful  team  as  rapidly  as  prac- 

»  III  re  BiiMwiii,  71  Cal.  78;  Meyer  n  Meyer,  23  Iowa,  .359;  92  Am.  Dec.  432. 

»  Wilc(.x  r.  Ilawley,  31  N.  Y.  (348;  H.irthouse  v.  Kikcrs,  1  Duer,  GOG;  Lock- 
woml  V.  Younglove,  27  Birb.  505;  Finnin  v.  Malloy,  33  N.  Y.  Sup.  Ct.  .382; 
Hoyt  V.  Van  Alstyne,  15  Barl).  568. 

*  Wolfeubargcr  v.  Stanclifer,  3  Saecd,  059;  Bowzey  v.  Newbegiu,  48  Me. 
410. 


§227  OF  TROPERTY   EXEMPT  FROM  EXECUTION.  698 

ticablo.^  It  is  evident  tliat  the  judges  have  looked  to 
the  object  rather  than  at  the  wordbig  of  the  statutes ;  and 
seeing  tliat  the  legislature  intended  to  protect  the  poor 
debtor  in  the  use  of  a  team,  the  judges  have  thought 
that  the  like  intent  must  have  exitsted  where  ho  had 
only  half  a  team.  The  exemption  of  **a  span  of  horses" 
has  been  held  not  to  protect  a  four-months' -old  colt, 
which,  with  its  mother,  constituted  the  debtor's  only 
horses.^  Two  calves  less  than  a  year  old  have  been 
exempted  as  a  "yoke  of  steers";^  and  an  ass  has  been 
exempted  under  a  statute  allowing  the  defendant  "a 
horse,  mule,  or  yoke  of  oxen."''  In  New  York  it  is 
clear  that  the  word  "team"  is  not  confined  to  the 
beasts  harnessed  together.  It  embraces  the  harness 
and  vehicle  with  which  the  beasts  are  commonly  used, 
and  without  which  they  would  be  of  comparatively 
little  value  to  the  debtor.^  A  team  cannot  be  held  as 
exempt,  unless  the  claimant  shows  that  he  is  one  of  the 
persons  for  whom  the  exemption  is  provided  by  statute.^ 
He  must  also  show  that  the  property  claimed  is  used 
by  him  as  a  team,  or  has  been  procured  for  the  purpose 
of  being  so  used.^  Hence  where  a  physician  claimed 
two  horses  as  exempt,  the  exemption  was  denied  as  to 
one  of  the  horses,  because  it  was  not  used  by  him  as  a 

*  Mallory  v.  Berry,  IG  Kan.  203;  Berg  v.  Baldwin,  31  Minn.  541.  In  Ver- 
mont a  colt  bought  when  suckling,  and  intended  for  use  for  team-work  when  of 
sufficient  age,  was  held  to  be  subject  to  attachment  when  about  two  years  old, 
and  after  it  had  been  used  to  a  limited  extent,  harnessed  to  a  shed,  for  the 
purpose  of  drawing  wood  and  water.     Sullivan  r.  Davis,  50  Vt.  649. 

^  Ames  V.  Martin,  6  Wis.  3G1;  70  Am.  Dee   4G8. 
=*  Mundell  V.  Hammcmd,  40  Vt.  641. 

*  Richardson  v.  Duncan,  2  Hcisk.  220. 

*  Harthouse  v.  Rikers,  1  Duer,  606;  Eastman  v.  Caswell,  8  How.  Pr.  75; 
Vaji  Buren  v.  Loper,  29  Barb.  3S8;  Dains  v.  Prosser,  32  Barb.  290;  Hutchins  v. 
Chamberlain,  UN.  Y.  Leg.  Obs.  248;  contra,  Morse  v.  Keyes,  6  How.  Pr.  18. 

6  CaUiouu  V.  Knight,  10  Cal.  393. 
">  O'Donnell  v.  Segar,  25  Mich.  3C7. 


699  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §227 

part  of  his  team/  But  where  a  man  is  alxmt  to  change 
his  occupation,  and  with  that  end  in  view  purchases  a 
team,  and  it  is  attached  before  he  has  any  opportunity 
to  make  any  use  of  it,  he  is  nevertheless  entitled  to 
hold  it  as  exempt.^  Where  a  man  shows  that  he  uses 
his  team  in  his  business,  it  is  regarded  as  necessar}^, 
and  is  to  be  treated  as  exempt,  although  he  may  have 
other  property  of  great  value,  and  may,  in  fact,  be  able 
to  live  without  the  aid  of  a  team.^ 

Some  of  the  statutes  exempt  a  team  ''kept  and  used 
for  team-work  " ;  and  this  keeping  and  using  would  be 
clearly  essential  whether  expressly  mentioned  in  the 
statute  or  not.  When  there  is  some  evidence  tending: 
to  show  this  use,  the  question  is  one  of  fact  to  be  sub- 
mitted to  the  jury.  ''Team-work"  means  work  done 
by  a  team  as  a  substantial  part  of  a  man's  business, 
as  in  farming,  staging,  express  carrj^ing,  drawing  of 
freight,  peddling,  the  transportation  of  material  used 
or  dealt  in  as  a  business.  This  is  clearly  distinguish- 
able from  what  is  circumstantial  to  one's  business,  as  a 
matter  of  convenience  in  getting  to  and  from  it,  or  as 
a  means  of  going  from  place  to  place  to  solicit  patron- 
age, or  to  settle  or  make  collections,  or  to  see  persons 
for  business  purposes.  It  is  plainl}^  distinguishable 
from  family  use  and  convenience,  pleasure,  exercise,  or 
recreation.  None  of  these  uses  of  a  horse  are  sug- 
gested by  the  expression  "kept  and  used  for  team- 
work."* It  is  not  essential  that  the  animals  claimed  as 
a  team  be  in  use  as  such  at  the  time  of  the  levy.     To 

^  Corp  v.  Griswold,  27  Iowa,  379. 

*  Bevaii  V.  Haydeu,  13  Iowa,  ]22. 

»  Smith  V.  Sla-le,  57  Barb.  G37;  Wheeler  v.  Cropsey,  5  How.  Pr.  2S8;  Wil- 
cox V.  Hawley,  31  N.  Y.  G58. 

*  Hickok  V.  Thayer,  49  Vt.  375. 


§2*27  OF  PROrKKTV   EXEMPT  FROM   EXECUTION.  700 

exact  a  cDuytant  use  of"  tlicin  would  ijiipo.se  a  burden 
oil  the  debtor  as  difficult  to  bear  as  a  denial  of  his 
claim  for  exeiiii)tion.  "It  has  never  been  understood 
that  an  actual  user  of  the  animal  for  team-work  at  the 
time  its  exemption  from  attachment  was  claimed  was 
necessary ;  such  a  construction  would  defeat  the  evi- 
dent i)urpose  of  the  statute.  Future  intended  use  is  as 
controllinjTf  upon  the  question  of  exemption  as  any  past 
use.  'Kept  and  used'  signifies  that  the  animal  must 
be  kept  for  team-work,  and  must  be  in  actual  use,  or 
must  be  kept  with  the  honest  intention  and  purpose  of 
the  owner,  within  a  reasonable  time  thereafter,  to  use 
him  for  team-work,  as  occasion  may  require,  to  en- 
able him,  with  the  aid  of  the  animal,  to  procure  a  live- 
lihood."^ The  statute  of  Illinois  exempts  "one  yoke 
of  oxen,  or  two  horses  in  lieu  thereof,  used  by  the 
debtor  in  obtaining  the  support  of  his  family."  This 
was  construed  as  exempting  horses  not  used  by  the 
debtor  personally,  but  driven  by  another  person  in 
hauling  for  sundry  persons  for  compensation,  the  debtor 
receiving  one  half  of  the  moneys  earned  thereby. 
The  words  "used  by  the  debtor  in  obtaining  the  sup- 
port of  his  family"  are  general,  and  restricted  to  no 
particular  mode  of  use.  They  are  answered  when  the 
team  is  hired  to  others  for  compensation,  which  com- 
pensation goes  into  the  general  fund  to  support  the 
family,  as  well  asi  where  the  debtor  himself  goes  with 
the  team  as  its  driver,  and  adds  the  earnings  to  his 
labor  or  to  that  of  the  team,  A  team  kept  for  pleas- 
ure merely  is  not  within  either  the  letter  or  the  spirit 
of  the  statute.  The  team  must  be  kept  and  used  in 
good  faith  to  contribute  to  the  means  of  support  of  the 

*  Rowell  V.  Powell,  53  Vt.  304. 


701  OF  PKOPERTY   EXEMPT  FROM  EXECUTION.  §228 

famil}' ,  but  when  it  is  thus  kept  and  used,  we  do  not 
consider  it  important  by  whom  it  is  taken  care  of  and 
used.  In  this  matter,  as  in  very  many  others,  the  act 
of  the  agent  or  servant  is  to  be  regarded  as  the  act  of 
the  principal  or  master.  The  use  is  his  use,  whether 
by  his  own  hands  or  by  those  of  another/ 

§  228.  The  "Term  'Wagon'  is  intended  to  mean  a 
common  vehicle  for  the  transportation  of  goods,  wares, 
and  merchandise  of  all  descriptions.  A  hackney-coach, 
used  for  the  conveyance  of  passengers,  is  a  different 
article,  and  does  not  come  within  the  equity  or  literal 
meanino-  of  the  act."  ^  We  doubt  whether  this  decision, 
in  so  far  as  it  excludes  a  hackney-coach  from  exemp- 
tion, will  be  followed  in  other  states.  The  tendency 
of  the  courts  is  toward  an  extremely  liberal  construc- 
tion of  the  exemption  laws.  Hence  all  four-wheeled 
vehicles,  whether  used  to  transport  persons  or  things, 
are  usually  held  to  be  exempt  as  wagons.^  In  Kansas 
the  court  thought  the  word  "  wagon  "  was  sufficiently 
comprehensive  in  its  ordinary  signification  to  include  a 
buo-o-y;  but  held  that  the  exemption  statute  of  that' 
state  showed  an  intention  to  qualify  the  term  so  as  to 
exclude  buggies.''  The  exemption  of  a  buggy  as  a 
wacron  was  at  first  denied,^  but  afterwards  conceded,®  in 
Minnesota.  In  Texas  a  dray  is  exempt  as  a  wagon,'' 
and  in  Wisconsin  a  hearse  is  held  to  be  within  the 

1  Washburn?;.  Goodheart,  88  111.  231. 
■>■  Quiglcy  V.  Goiham,  5  Cal.  418;  G3  Am.  Dec.  139. 

»  Rogers  v.  Ferguson,  32  Tex.   533;  Nichols  v.  Claiborne,  39  Tex.  363,  in 
which  carriages  and  buggies  were  held  exempt. 
*  Gonlon  v.  Shields,  7  Kan.  .320. 
'•'  Diiigmau  v.  Raymon<l,  27  Minn.  507. 
^  AlU-n  V.  Coates,  29  Minn.  4G. 
'  Cone  V.  Lewis,  04  Tex.  331;  53  Am.  Rep.  767. 


§229  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  702 

same  exemption.'  In  Alabama  it  was  liold  that  the 
exemption  of  "  carts"  ineludcd  wagons;-  and  in  Ten- 
nessee, that  the  exemption  of  "  a  two-liorse  wagon  "  in- 
cluded a  wagon  which  in  fact  had  alwaj^s  been  drawn 
by  oxew,  but  which  it  was  possible  to  use  as  a  two- 
liorse  wa<2:on.^ 

§  229.  The  Exemption  of  "  a  Horse  "  has  been  held 
to  imply  that  the  animal  must  be 'a  work-horse.  The 
object  of  the  law  is  to  provide  the  debtor  with  the 
means  of  carrying  on  his  vocation.  Hence  a  stallion 
used  solely  for  the  purpose  of  propagation  is  not  ex- 
empt from  execution;*  but  it  would  be  otherwise  if  he 
were  kept  exclusively  or  chiefly  as  a  work-horse.^'  In 
order  to  entitle  a  claimant  to  retain  his  horse,  it  is  not 
essential  that  the  animal  should  have  been  broken  to 
harness,  or  that  it  should  have  been  used  in  the  man- 
ner in  which  other  people  commonly  employ  their 
horses.  It  is  sufficient  that  the  horse  does  work  or 
drudgery  for  the  defendant  or  his  family.  The  method 
in  which  he  is  made  to  do  this  is  immaterial.®  Though 
the  statute  exempts  "  horses,"  the  courts  have  held 
that  the  term  includes  ''colts"  where  the  debtor  has  not 
the  number  of  horses  allowed  him  by  law.'  "The  use- 
fulness and  service  of  a  mule  are  identical  with  that  of 
a  horse,  at  least  so  far  as  the  exemption  is  concerned ; 
and  as,  in  common  parlance,  the  mule  is  hardly  distin- 
guishable from  the  horse,  we  are  of  the  opinion  that 

*  Spikes  V.  Burgess,  05  Wis.  4"8. 

2  Favcrs  V.  Gla.ss,  22  Ala.  021. 

3  Wel)b  V.  Brandou,  4  Ileisii.  285. 

*  lUibert  V.  Adams,  .38  Cal.  .38.3;  99  Am.  Dec.  4KJ. 

^  AUman  v.  Gann,  29  Ala.  240;  McCuc  v.  Tunstead,  05  Cal.  506. 
sNolaiid  V.  Wickham,  9  Ala.  109;  44  An:.  Dec.  4.35. 
'  Kennedy  v.  Bradbury,  55  Me.  107;  92  Am.  Dec.  572. 


703  OF    PROPERTY   EXEMPT  FROM  EXECUTION.     §§  230,  231 

tlie   word    *  horses,'  as  used    in   the  statute,   includes 
mules  also."  ^ 

§  230.  Under  the  Statutes  Exempting'  Cows  from 
execution,  the  only  question  which,  so  far  as  we  are 
aware,  has  arisen  for  decision  is,  whether  a  heifer  is, 
for  tiie  purposes  of  exemption,  to  be  regarded  as  a 
cow.  The  answer  has  been  that  "a  heifer  is  a  young* 
cow,  and  as  such-  exempt  from  attachment,  if  the 
debtor  has  no  other.""^  It  is  also  insisted  that  when 
the  law  exempts  a  thing,  it  imphedly  authorizes  the 
debtor  to  obtain  that  thinp'  on  the  most  advantap-eous 
terms  within  his  reach.  Therefore  it  is  claimed  that 
the  exemption  of  a  cow  implies  that  the  debtor  may 
procure  one  by  buying  and  raising  a  heifer.  In  Ver- 
mont, the  exemption  of  the  debtor's  only  cow  has 
been  held  to  include  the  exemption  of  butter  made 
from  her  milk,^  because  the  legislature  could  not  have 
intended  that  the  debtor  should  keep  the  cow  for  the 
sake  of  giving  the  creditor  the  profits  of  her  keeping. 
Vy'liere  every  head  of  a  family  is  by  statute  allowed  as 
exempt  two  cows,  the  right  to  such  exemption  is  abso- 
lute, and  cannot  be  defeated  by  showing  that  they 
were  not  necessary  to  the  support  of  the  debtor  or  his 
family.* 

§231.  Household  Furniture.  —  A  trunk  and  cabi- 
net-box having  been  claimed  as  exempt  as  houshold 

1  Allison  V.  Brookshire,  38  Tex.  202. 

^  Johnson  V.  Babcock,  8  Allen,  583;  Pomeroy  i\  Trimpler,  8  Allen,  403;  85 
Am.  Deo.  714;  Freeman  v.  Carpenter,  10  Vt.  433;  33  Am.  Dec.  210;  Dow  r. 
S  uith,  7  Vt.  405;  2!)  Am.  Dec.  202.  In  these  cases,  the  heifer  in  controversy 
was  between  cue  and  two  years  of  age.  A  yearling  heifer  held  not  to  be  ex- 
empt under  a  statute  exempting  two  cows  and  a  calf.  Mitchell  v.  Joyce,  09 
Iowa,  122. 

»  Leavitt  V.  Metcalf,  2  Vt.  342;  19  Am.  Dec.  718. 

*  Nuzuiaa  v.  Schooley,  30  Kan.  178. 


§231  OF  PROrERTY    EXEMPT   FROM   EXECUTION.  704 

furniture,  the  court,  in  giviuo-  its  reasons  for  denying 
the  claim,  said  :  "  The  expression  'houseliold  furniture' 
must  be  understood  to  mean  those  vessels,  utensils,  or 
o-oods   which,  not  bccominii:  fixtures,  are  designed  in 
their  manufacture  originally  and  chiefly  for  use  in  the 
family  as  instruments  of  the  household,  and  for  con- 
ducting and  managing  household  affairs.     Neither  of 
these  articles  would  seem  to  hold  such  a  place  in  the 
domestic  economy.     The  trunk,  though  often  perhaps 
made  to  some  extent  to  take  the  place  of  the  chest  of 
drawers,  the  bureau,  or  the  wardrobe,  is  nevertheless 
in  its  construction  designed  for  and  adapted  to  the  use 
of  the  traveler  as  such  rather  than  the  householder. 
By  the  cabinet-box  we  understand  an  article  designed, 
in  jts  material  and  workmanship,  rather  for  ornament 
than  use,  and,  so  far  as  designed  for  use,  intended  for 
keeping  jewelry  and  other  small  articles  of  value;  thus 
ministering  to  the  taste  of  the  owner  rather  than  the 
necessities  or  convenience  of  the  household."^    A  piano 
is  not  an  article  of  household  furniture ;  its  primary  and 
principal  use  is  as  a  musical  instrument."    Where,  how- 
ever, the  articles  claimed  as  exempt  are  conceded  to  be 
household  furniture,  a  liberal  allowance  will  be  made. 
Under  ordinary  circumstances,  it  will  be  incumbent  on 
the  plaintiff  in  execution  to  show  that  the  furniture  of 
the  defendant  is  excessive  in  quantity,  and  far  beyond 
what  is  needed  for  immediate  use  in  the  family.^     No 
beds  can   be  taken  where  the   family  consists  of  five 
persons,  and  has  provided  itself  with  six  beds.''     But  if 

1  Towns  V.  Pratt,  3.3  N.  H.  345;  G6  Am.  Dec.  720. 

■'  Tanuer  v.  Billings,  18  Wis.  1G3;  8G  Am.  Dec.  755;  Dunlap  v.  Edgerton,  30 
Vt.  224. 

-  Heath  v.  Keyes,  35  Wis.  G68. 

*  Haswell  v.  Parsons,  15  Cal.  26G;  7G  Am.  Dec.  480;  Deckcrman  v.  Van 
Tyne,  4  Sand.  724. 


705  OF  PROPERTY   EXEMPT  FROM  EXECUTION.  §231 

the  furniture  on  hand  is  designed  for  the  purpose  of 
keeping  a  boarding  or  lodging  house,  it  may,  so  far  as 
it  is  in  excess  of  family  necessities,  be  taken  in  exe- 
cution/ The  fact  that  furniture  is  in  temporary  dis- 
use does  not  prevent  its  being  exempt  from  execution.^ 
"The  exemption  is  not  necessarily  restricted  to  such 
furniture  as  is  in  constant  use;  nor  is  it,  as  before  sug- 
gested, restricted  to  the  use  of  the  debtor  himself. 
Reasonable  provision  may  be  made,  according  to  cir- 
cumstances, for  wife  and  children,  for  domestics,  for 
dependent  relatives  who  may  be  residing  with  and 
constitute  a  part  of  the  family,  and  for  visitors."^  In 
many  of  the  states  the  statute,  instead  of  exempting 
all  the  household  furniture  of  the  debtor,  exempts 
only  necessary  household  furniture.  But  the  word 
** necessary"  is  always  given  a  liberal  construction. 
It  is  never  treated  as  synonymous  with  "indispensa- 
ble." It  embraces  all  those  articles  which  enable  the 
family  to  live  conveniently  and  decently,  according  to, 
the  custom  of  the  country  in  which  they  reside.  "  We 
think  the  word  'necessary'  was  not  intended  to  denote 
-those  articles  of  furniture  only  which  are  indispensable 
to  the  bare  subsistence  of  the  persons  for  whose  bene- 
fit the  law  was  designed,  —  the  debtor  and  his  family. 
According  to  such  a  limited  construction,  it  would 
exclude  many  things  which  universal  usage  and  the 
common  understanding  of  that  word  in  reference  to 
this  subject  have  pronounced  to  be  necessary  articles 
of  household  furniture;  and  would,  indeed,  protect 
merely  those  rude  contrivances  which  are  used  only  in 
a  savage  state.     The  word  was  obviously  used  in  a 

*  Weed  V.  Dayton,  40  Couu.  296;  13  Am.  Law  Reg.  COS. 
'  Ibid.  3  Ibid. 

Vol.  I. —45 


§231  OF  PROPERTY   EXEMPT  FROM  EXECUTION.  70C 

lai'i^'er  sense;  it  was  intended  to  embrace  those  things 
which  are  requisite  in  order  to  enable  the  debtor  not 
merely  to  live,  but  to  live  in  a  convenient  and  comfort- 
able manner."^  Nevertheless,  it  cannot  be  extended 
by  taking  into  consideration  the  debtor's  present  or 
past  station  in  life,  and  the  mode  of  living  to  which  he 
and  his  family  have  been  accustomed.  Articles  which 
are  unusuallj^  valuable,  so  as  properly  to  be  regarded 
as  ornaments,  cannot  be  exempt  under  a  statute  ex- 
empting "household  furniture  necessary  for  supporting 
life."  "The  law  intends  that  the  debtor,  when  with- 
holding money  from  his  creditor  for  furniture,  shall 
supply  each  class  of  his  necessities,  and  secure  his  com- 
fort and  convenience  by  expending  money  in  a  rea- 
sonably economical  manner,  looking  solely  to  utility."^ 
Though  the  exemption  purports  to  be  of  "all  household 
and  kitchen  furniture,"  it  must  be  restricted  to  such 
furniture  as  the  debtor  has  for  the  use  of  himself  and 
famil}",  and  cannot  include  that  which  he  may  have  and 
use  in  conducting  a  hotel  or  restaurant,  beyond  what 
is  used  by  his  family;^  nor,  on  the  other  hand,  can  he 
be  deprived  of  the  household  furniture  appropriate  for 
the  use  of  his  family,  because  he  is  the  keeper  of  a 
boardiniy-house.*  In  some  of  the  states  the  household 
furniture  to  which  a  debtor  is  entitled  as  exempt  is  by 
statute  limited  by  value  only.     Where  this  is  the  case, 

*  Montague  v.  Richardson,  24  Conn.  338;  63  Am.  Dec.  173;  Davlin  v.  Stone, 
4  Cusli.  35?.  It  has  been  held  that  a  watch  may  sometimes  be  exempt  as 
necessary  household  furniture.  Wilson  v.  Ellis,  1  Dcnio,  4G2;  Leavitt  v.  Mct- 
calf,  2  Vt.  .342;  19  Am.  Dec.  718. 

'•'  Hitchcock  V.  Holmes,  43  Conn.  528.  The  articles  of  which  exemption  was 
denied  in  this  case  consisted  of  lace  curtains  of  the  value  of  $1G0,  hanging  over 
curtains  of  cloth,  a  pier-glass  with  base  valued  at  §125,  a  clock  of  the  value 
of  $50. 

'  Hcidenheimer  v.  Blumenkron,  56  Tex.  308. 

*  Vanderhorst  v.  Bacon,  38  Mich.  669;  31  Am.  Rep.  338. 


707  OF  PROPERTY   EXEMPT  FROM  EXECUTION.  §232 

the  furniture  exempt  "may  be  pictures  hung  upon  the 
walls,  or  other  furniture,  or  mere  ornaments,  or  bed- 
room furniture  for  visitors  only,  or  bedroom  furniture, 
table-ware,  etc.,  for  paying  guests,  boarders,  etc."  "The 
word  'furniture'  is  a  comprehensive  term,  embracing 
about  everything  with  which  a  house  or  anything  else 
can  be  furnished.  It  evidently  means  everything  with 
which  the  residence  of  the  debtor  is  furnished."^ 

§  233.  Wearing  Apparel  was  exempt  from  execu- 
tion at  common  law.  The  exemption,  however,  was 
very  limited  in  its  character,  and  was  probably  confined 
to  the  garments  in  which  the  debtor  was  clad.^  If  he 
had  two  coats,  it  was  safe  for  the  officer  to  seize  one. 
In  fact,  it  is  quite  doubtful  whether  the  exemption  was 
not  dependent  upon  the  apparel  being  found  on  the 
debtor's  person.  However  this  may  be,  it  has  been 
held  in  New  York  that  no  officer  has  the  right  to 
deprive  a  defendant  of  the  means  of  preventing  his 
person  from  being  exposed  to  the  inclemency  of  the 
weather  and  the  observation  of  the  populace;  and 
therefore,  that  th(^gh  the  debtor  is  in  bed,  and  not 
usino"  his  wearing  apparel,  yet  that  it  cannot  be  at- 
tached." The  common  law  has  in  most  of  the  states, 
so  far  as  concerns  this  exemption,  been  supplanted  by 
statutes  under  which  it  is  certain  that  the  debtor  need 
not  always  keep  his  clothes  on  to  insure  their  pro- 
tection from  the  rapacity  of  his  creditor.  Some  of 
these  statutes  exempt  all  wearing  apparel ;  others  ex- 
empt only  such  as  is  necessary.     Under  the  first  class  of 

1  Rasure  v.  Hart,  18  Kan.  .344;  20  Am.  Rep.  772. 

*  Cooke  V.  Gibbs,  3  Mass.  19.3;  Sunbolf  v.  Alford,  3  Mees.  &  W.  248;  Wolff 
V.  Summers,  2  Camp.  031;  Bowne  v.  Witt,  19  Wcml.  475. 
^  Bumpua  v.  Maynard,  38  Barb.  626. 


§232  OF   PROPERTY   EXEMPT  FROM   EXECUTION.  708 

statutes,  a  lace  shawl,  being  wearing  apparel,  is  exempt, 
irrespective  of  its  cost,  if  it  was  bought  h<ma  fide  for 
use,  and  not  with  a  view  of  acquiring  property  which 
shouKl  be  beyond  the  reach  of  creditors.^  Wearing 
apparel  consists  of  "garments  w^orn  to  protect  the 
person  from  exposure,  and  not  articles  used  for  orna- 
ment merely."  It  does  not  include  trinkets  nor  jewelry.^ 
Cloth  and  trimmings  purchased,  and  about  to  be  used 
for  the  purpose  of  being  made  into  clothing,  are  exempt 
as  wearing  apparel.^  In  those  states  where  the  ex- 
emption is  confined  by  statute  to  necessai'y  wearing 
apparel,  the  word  "necessary"  "is  not  to  be  understood 
m  its  most  rigid  sense,  implying  something  indispen- 
sable, but  as  equivalent  to  convenient  and  comfortable. 
It  would  therefore  include  such  articles  of  dress  or 
clothing  as  might  properly  be  considered  among  the 
necessaries,  in  contradistinction  to  the  luxuries,  of  life. 
Whether  an  article  attached  is  a  necessary  or  a  luxury 
may,  under  some  circumstances,  be  a  question  for  the 
jury,  depending  upon  the  situation  of  the  debtor  and 
the  character  and  uses,  and  perhaps  the  cost,  of  the 
article."^  "The  wearing  apparel  'necessary  for  immedi- 
ate use'  must  be  such  an  amount  of  clothing  as  is  ne- 
cessary to  meet  the  varying  climate  and  the  customary 
habits  and  ordinary  necessities  of  the  mass  of  the  people. 
The  clothing  worn  by  the  individual  while  about  his 
daily  toil  might  be  all  that  was  necessary  for  the  time, 
but  be  w^holly  insufficient  when  the  labor  ceased ;  and 
the  clothing  suitable  and  proper  for  days  of  labor  might 

'  Frazier  v.  Barnum,  19  N.  J.  Eq.  31G;  97  Am.  Dec.  666. 

^  Frazier  v.  Barnum,  19  N.  J.  Eq.  316;  97  Am.  Dec.  606;  Towns  v.  Pratt, 
33  N.  H.  345;  66  Am.  Dec.  726.  Hence  a  watch  ia  not  wearing  apparel.  Smith 
V.  PfcOgers,  16  Ga.  479. 

»  Richardson  v.  Buswell,  10  Met.  506;  43  Am.  Dec.  450. 

*  Towns  V.  Pratt.  33  N.  H.  349;  66  Am.  Dec.  726. 


709  OF  IROPERTY  EXEMPT  FROM  EXECUTION.  §233 

not  be  such  as  the  common  sentiment  of  the  com- 
munity would  deem  necessary  for  use  on  days  set  apart 
for  religious  assembling  and  worship."^  Wearing  ap- 
parel, as  these  words  are  used  in  the  statutes,  consists 
of  clothing  or  garments.  A  watch  is  an  article  for 
which  exemption  has  been  claimed  under  various  pro- 
visions of  the  statutes  of  exemption ;  thus  it  has  been 
held  to  be  exempt  as  necessary  household  furniture,^ 
as  a  working  tool,'  and  as  wearing  apparel/  We  think 
the  better  rule  is  that  it  is  not  exempt  in  either  ca- 
pacity/ 

§  233.    Provisions  for  Family  Use,  or  for  Feed  for 
Stock. — Articles  purchased  and  kept  for  sale  cannot 
be    exempted   as   provisions  provided    for  family  use, 
though  the  family  had  been  supplied  from  them  before 
the  levy/     Corn  on  hand  may  be  exempted  as  provis- 
ions, if  it  was  kept  with  a  view  of  being  converted 
into  food  for  the  family/     It  has  been  held  that  corn 
standing  ungathered  in  the  field  is  not  exempt.^     But 
this  is  contrary  to  the  weight  of  the  authorities.     The 
only  test  is  to  inq^re  whether  the  articles  claimed  as 
exempt  were  provided  and  intended  as  provisions  to 
support  the  family.     If  they  were  so  provided,  and  are 
adapted  to  the  purpose  for  which  the  debtor  intends 
them,  they  are  exempt,  though  they  may  exist  in  the 

^  Peverly  v.  Sayles,  10  N.  H.  356. 

2  Leavitt  v.  Mutcalf,  2  Vt.  342;  19  Am.  Dec.  718. 

*  Bitting  V.  Vaiulenburgh,  17  How.  Pr.  80. 

*  Stewart  v.  McClung,  12  Or.  431;  53  Am.  Rep.  374. 

"  Rothschild  V.  Boclter,  18  Minn.  3G2;  Gooch  v.  Gooch,  33  Me.  535;  Sawyer 
V.  Sawyer's  Heir.s,  28  Vt.  251. 

«Nash  V.  Farringtou,  4  Allen,  157;  Robinett  v.  Doyle,  2  West.  L.  M.  585. 
It  seems  that  property  bought  to  sell  is  never  exempt.  Guptil  v.  McGee,  9 
Kan.  30;  O'Donuell  v.  Segar,  25  Mich.  3G7. 

'  Atkinsons.  Gatcher,  23  Ark.  101. 

8  Donahue  v.  Steele,  2  West.  L.  J.  402. 


§234  OF  PROPERTY   EXEMPT  FROM   EXECUTION.  710 

form  of  vco-otables  vet  to  be  tluq;  horn  the  soil,  or  of 
corn  yet  to  be  severed  from  the  stalk/  Starting  vege- 
tables to  market,  to  sell  or  exchange  them  for  other 
necessaries  of  life,  is  not  a  forfeiture  of  the  right  to 
hold  them  as  exempt." 

Where  the  statute  exempts  necessary  food  for  stock, 
what  is  necessary  must  be  determined  upon  all  the  cir- 
cumstances of  the  case.  During  the  season  for  pastur- 
ing, no  feed  may  be  exempt,  if  the  stock  is  such  that  it 
should  be  kept  by  pasturing.  Ordinarily,  necessary 
food  for  stock  is  such  an  amount  as  will  keep  it  until 
proper  food  may  be  realized  from  the  productions  of 
the  ensuing  crop-producing  season.^  Food  for  stock 
is  not  allowed  to  a  defendant  unless  he  owns  stock,^ 
or  unless  he  has  the  means  with  which  he  intends  to 
buy  it.^ 

§  234.    Exemption  of  Wages,  Earnings,  etc. — In 

most  of  the  states  the  exemption  laws  have  been 
amended  at  a  comparatively  recent  period  with  a  view 
of  exempting  some  portion  of  the  earnings  of  persona 
who  do  not  carry  on  business  on  tl^ir  own  account,  but 
merely  as  employees  of  others.^  The  rapid  multipli- 
cation of  great  manufacturing,  transportation,  and  other 
corporations,  with  the  army  of  employees  in  the  ser- 
vice of  each,  has  attracted  attention  to  the  multitude 

»  Mulligan  v.  Newton,  16  Gray,  211;  Carpenter  v.  Herrington,  25  Wend. 
370;  37  Am.  Dec.  239. 

2  Shaw  V.  Davis,  55  Barb.  389. 

3  FarreU  v.  Higlcy,  Hill  &  D.  87. 

*  King  V.  Moore,  10  Mich.  538.  In  Vermont  the  exemption  of  forage  is 
understood  to  extend  to  a  quantity  sufficient  to  keep  all  the  stock  named  in 
the  statute  as  exempt,  whether  the  debtor  owns  that  amount  of  stock  or  not. 
Kimball  v.  Woodruff,  55  Vt.  229. 

=^  Cowan  V.  Main,  24  Wis.  5G9. 

6  Davis  V.  Meredith,  48  Mo.  203.  See  statutes  on  this  subject  collected  in 
note  91  Am.  Dec.  411. 


711  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §234 

of  men,  many  of  wliona  are  householders,  who  have  no 
tools  or  implements  of  their  own  to  be  exempted,  and 
whose  only  means  of  support  consists  of  the  moneys 
due  them  from  their  employers  at  stated  times  for 
services  rendered.  The  garnishment  of  these  moneys 
left  them  and  their  families  without  any  means  of 
support.  Hence  the  enactment  of  divers  statutes 
withdrawing  such  moneys,  to  a  limited  extent,  from 
execution  and  attachment.  The  debt  thus  withdrawn 
is  variously  described  as  "wages,  salaries,  or  compensa- 
tion of  laborers  and  employees  for  personal  services,"^ 
"time  wages  of  all  laborers  and  mechanics,"^  "earnings 
of  judgment  debtor  for  his  personal  services,"^  "debt 
which  has  accured  by  reason  of  personal  services  of  the 
debtor,"*  "fifty  per  cent  of  the  wages  for  labor  or  ser- 
vice of  any  person  residing  within  the  state,"''  "money 
due  for  personal  labor  or  services,"^  "daily,  weekly,  or 
monthly  wages  of  all  journeymen,  m'echauics,  and  day 
laborers,"^  "wages  and  services,"^  "wages,"^  "earnings 
of  a  judgment  debtor  for  his  personal  services  or  those 
of  his  family,"^^  "wages  or  hire  of  any  laborer  or 
• 

1  Code  Ala.,  1876,  sec.  2823. 

2  Ark.  Dig.,  1884,  sec.  3422. 

3  Cal.  Code  Civ.  Proc,  sec.  690,  subd.  8;  Code  N.  C,  1885,  vol.  1,  sec.  493; 
Code  Civ.  Proc.  Col.,  .sec.  226;  Gen.  Laws  Idaho,  1881,  sees.  439,  440;  Dassler'a 
Comp.  Laws  Kan.,  1S85,  sees.  4719,  4303;  Rev.  Stats.  Mont.,  1879,  sec.  310; 
Gen.  Laws  Nov.,  1885,  sec.  .3207;  Code  Civ.  Proc.  N.  Y.,  1886,  sec.  24G3;  Gen. 
Laws  Or.,  1872,  sec.  310;  Code  Civ.  Pro.  S.  C,  sec.  317. 

*  Pub.  Stats.  Conn.,  1882,  c.  59,  p.  150.  As  towages  of  minors,  see  Pub. 
Acts  Conn.,  1SS3,  c.  55,  p.  254. 

*  Rev.  Code  Del.,  1882,  as  amended;  Stats.  1874-75,  c.  Ill,  pp.  684,  085. 
8  McClellan's  Dig.  Fla.,  1881,  c.  104,  sec.  23,  p.  534. 

'  Code  fra.,  1882,  sec.  3554. 

^  Starr  and  Center's  Ann.  Stat.  111.,  vol.  2,  c,  62,  par.  14. 

»  Rev.  Stats.  Ind.,  1881,  sees.  958,  959;  Gen.  Stats.  Ky.,  1883,  c.  38,  art.  13, 
sec.  8;  Rev.  Stats.  Mo.,  1879,  sees.  416,  2519. 

'«  Mcclain's  Ann.  Stats.  Iowa,  1880,  sec.  3074;  Rev.  Stats.  Me.,  1883,  tit.  9, 
c.  86,  sec.  55,  subd.  0;  Rev.  Stats.  Oliio,  1883,  sec.  5430. 


§234  OF   PROPERTY  EXEMPT  FROM  EXECUTION.  7J2 

employoe  not  actually  due  at  the  date  of  the  attach- 
ment,"^ "  money  or  credits  which  arc  due  for  the  wages 
of  the  personal  labor  or  services  of  defendant,  or  of 
his  wife  or  minor  children,""  "wages  of  any  laboring 
man  or  woman,  or  of  his  or  her  minor  children,"^ 
**  wages  of  every  laborer  and  mechanic,"*  "wages  of 
laborers,  mechanics,  and  clerks/'^  "  wages  of  any  la- 
l.)orer,  or  the  salary  of  any  person,  in  private  or  public; 
employment,"®  "  salary  or  wages," ^  "  wages  of  mechanic 
or  other  laboring  man,"^  "  current  wages  for  personal 
services,"®  "  wages  or  compensation,"^^  and  "earnings 
of  all  married  persons  having  families  dependent  on 
them  for  support."" 

The  amount  of  wages  or  earnings  exempted  varies  in 
the  different  states.  In  some  it  must  not  exceed  twenty- 
five  dollars  per  month,  in  others  it  is  for  a  designated 
number  of  days  preceding  the  garnishment;^^  in  others 
the  time  is  unlimited.  In  some  of  the  states  a  necessity 
for  the  exemption  must  be  shown ;^^  while  in  others  it 
need  not.  One  of  the  questions  most  frequently  recur- 
ring under  these  statutes  is  what  is  meant  by  the  terms 
"wasres"  or  "earning^s."    Whero  the  defendant  is  work- 

1  Rev.  Code,  Md.,  1S78,  art.  G7,  sec.  53. 

2  Pub.  Stats.  Mass.,  18S2,  p.  1054,  sees.  29,  30;  Gen.  Laws  N.  H.,  1878,  c. 
249,  sec.  40;  Howell's  Ann.  Stats.  Mich.,  1882,  sees.  8032,  809G,  7091. 

3  Minn.  Stats.,  1878,  c.  G6,  sec.  310. 

♦  Rev.  Code  Miss.,  1880,  c.  45,  sec.  1244. 

*  Comp.  Stats.  Neb.,  1885,  sec.  531;  Wright  v.  C.  B.  &  Q.  R.  R.,  19  Neb. 
175. 

6  Brightly's  Pardon's  Dig.  Pa.,  vol.  1,  p.  746,  sec.  40,  and  p.  1000,  sec.  120. 

'  Pub.  Stats.  R.  I.,  1882,  c.  209,  sec.  10-13. 

8  Milliken  and  Ventrees's  Code  Tonn.,  1884,  sec.  2931. 

»  Rev.  Stats.  Tex.,  1879,  arts.  2335,  2337. 
"3  Rev.  Laws  Vt.,  1880,  sec.  1075. 
"  Laws  Wis.,  1883,  c.  141. 

^'  Haynes  v.  Hussey,  72  Me.  448;  Cal.  Code  Civ.  Proc,  sec,  690  subd.  8;  sec. 
531,  Code  Neb. 

"  Ziminerniaa  v.  Franke,  34  Kan.  650. 


713  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §234 

ing  for  a  salary,  or  where  the  money  or  debt  sought  to 
be  subjected  to  execution  is  the  result  of  the  defendant's 
personal  labor  unassisted  by  any  other  person  or  thing, 
there  can  be  no  doubt  that  he  is  entitled  to  the  exemp- 
tion, unless  such  exemption  is  conceded  only  to  a  par- 
ticular class  of  persons  to  which  the  claimant  does  not 
belong.  Thus  if  the  exemption  is  of  earnings  of  the 
debtor  for  his  personal  services,  a  professional  man,  as 
a  physician  or  school-teacher,  is  entitled  to  the  exemp- 
tion/ If,  on  the  other  hand,  the  exemption  is  given  to 
laborers  or  mechanics,  the  claimant  must  show  that  he 
belongs  to  the  class  exempted.  Whether  a  claimant  is 
a  laborer  or  mechanic  may  frequently  admit  of  doubt. 
In  Georgia  it  was  held  that  overseers,^  and  shipping  and 
receiving  clerks,^  and  forwarding  clerks,^  and  teachers,^ 
were  laborers.  The  correctness  of  these  decisions  was 
subsequently  doubted,  and  the  court  refused  a  claim  for 
exemption  made  by  one  who  was  the  boss  or  director 
of  an  entire  department  of  an  extensive  factory,  au- 
thorized to  employ  and  discharge  hands,  and  who  had 
under  his  supervision  150  men,®  Moneys  due  for  ser- 
vices as  commissioner  in  a  partition  suit,^  or  for  salary  as 
president  of  a  railway  company,^  are  not  exempt  as 
the  wages  of  laborers  or  employees.  Whether  the 
amount  due  is  for  wages  or  personal  services  may  also 
be  questionable.     The   claimant   may  have   used   his 

'  McCoy  V.  Cornell,  40  Iowa,  457;  Miller  v.  Hooper,  19  Hun,  394. 

'  Caraker  v.  Matthews,  25  Ga.  571;  Russell  v.  Arnold,  25  Ga.  G25. 

»  Butler  V.  Clark,  40  Ga.  40G. 

*  Claghorn  v.  Sausoy,  51  Ga.  576. 

'  Hightower  c.  Slaton,  54  Ga.  108;  21  Am.  Rep.  273.  Teachers  are  not 
regarded  as  laborers  in  Pennslyvania.     Schwacke  v.  Langton,  12  Pbila.  402. 

®  Kile  V.  Montgomery,  73  Ga.  343. 

">  State  V.  Cobb,  4  Lea,  481;  South  &  N.  A.  R.  R.  Co.  v.  Falkner,  49  Ala. 
116. 

»  South  &  N.  A.  R.  R.  Co.  v.  Falkner,  49  Ala.  115. 


§234     OF  PROPERTY  EXEMPT  FROM  EXECUTION.      714 

capital  or  that  of  others,  or  may  have  employed  assist- 
ants, or  labored  with  the  aid  of  his  team.     In  either 
case,  the  moneys  realized  are  not  solely  the  fruits  of 
his  personal  labor.     In  Pennsylvania,  the  "wages  of 
laborers"  were  exempt  from  attachment.     One  Chave 
contracted  to  grade  and  excavate  a  street.     In  per- 
forming his  contract  he  employed  two  carts,  two  or 
three  horses,  "and  enough  of  hands,  with  himself,  to 
keep  these  in  exercise."     The  supreme  court  of  the 
state,  being  required  to  decide  whether  moneys  due 
under  this  contract  were  wages,  within  the  meaning  of 
the  statutes,  gave  its  opinion  as  follows:    "The  act 
was,  doubtless,  intended  to  protect  and  secure  to  the 
laborer  what  was  earned  by  his  own  hands.     'Muzzle 
not  the  ox  which  treadeth  out  the  corn.'     It  was  not 
desi<^ned  to  protect  the  contracts  of  those  who  specu- 
late upon  or  make  profit  out  of  the  labor  of  others. 
The  term  'labor,'  to  be  sure,  is  of  very  extensive  signi- 
fication.    The  merchant  labors,  for  there  is  mental  as 
well  as  manual  or  corporeal  labor;  the  farmer  labors, 
the  professional  man  labors,  and  judges  labor,  as  every 
member  of  this  court  can  testify.     But  it  is  this  very 
capability  of  enlarged   extension  which  produces  the 
necessity  to  circumscribe  and  limit  the  word  as  used 
in  the  statute,  in  order  to  accomplish  what  we  believe 
must  have  been  the  intent  of  the  legislature.     That  is, 
to  secure  to  the  manual  laborer,   by  profession  and 
occupation,  the  fruits  of  his  own  work  for  the  subsist- 
ence of  himself  and  family.     If  it  is  extended  to  the 
contractor  who  employs  others,  we  would  by  that  con- 
struction prevent  the  actual  laborer,  who  earned  the 
money,  from  attaching  it  to  secure  the  wages  of  his 
labor,  and  his  reward.     We  believe  that,  by  confining 


715  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §234 

the  exemption  from  attachment  to  the  actual  reward 
or  wages  earned  by  the  hands  and  labor  of  the  individ- 
ual himself,  and  his  family  under  his  direction,  we  best 
accomplish  the  beneficial  design  of  the  legislature."^ 
But  the  doctrines  of  this  case  were  certainly  modi- 
fied, and  to  a  great  extent  overruled,  in  the  subsequent 
case  of  Pennsylvania  Coal  Co.  v.  Costello.^  Kennedy 
was  a  miner  by  profession.  He  contracted  to  mine 
coal  at  a  fixed  rate  per  ton,  and  in  executing  his  con- 
tract employed  a  common  laborer  to  assist  him.  A 
sum  of  money  due  from  the  coal  companj^  to  Kennedy 
under  this  contract  was  garnished  by  Costello.  This 
sum  was  shown  to  represent  the  wages  or  profits  due 
to  Kennedy  after  paying  his  laborer.  It  was  therefore 
held  to  be  exempt.  "The  labor  of  the  miners  is  as 
truly  labor  as  that  of  the  subordinate  whom  they 
employ,  and  their  earnings  as  truly  wages  as  are  his. 
If  tbe  proviso  would  protect  his  earnings  from  seizure, 
it  must  be  held  to  protect  the  earnings  of  the  miners. 
Any  other  construction  would  embarass  a  large  and 
productive  branch  of  industry,  which  doubtless  has 
adjusted  itself  in  the  best  form  for  both  employer  and 
employee,  and  would  also  discriminate  unfairly  against 
the  most  meritorious  class  of  laborers."^  In  Wiscon- 
sin, a  judgment  debtor  was  employed  by  merchants  to 
inspect  flour,  and  was  paid  a  specified  price  for  each 
barrel.  He  inspected  daily  himself,  passing  upon  every 
sample,  and  employed  a  deputy,  a  book-keeper,  and  a 
laborer.  His  net  income  was  about  two  thousand  five 
hundred  dollars  per  annum,  and  was  held  to  be  his 

^  Heebner  v.  Chave,  5  Pa.  St.  115.     See  also  Smith  v.  Brooke,  49  Pa.  St. 
147. 

"33  Pa.  St.  241. 

»  Penuaylvauia  Coal  Co.  v.  Costello,  33  Pa.  St.  241. 


S234  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  716 

earnings  witliln  the  meaning  of  the  exemption  statute.' 
In  another  ease  in  tlie  same  state,  the  word  "earn- 
ings" was  held  to  protect  all  that  the  debtor  made  by 
the  assistance  of  his  team  and  other  exempt  property.* 
Where  one  is  employed  to  superintend  work  being 
done  under  a  contract,  for  which  he  is  paid,  as  a  com- 
mission for  his  services,  a  certain  percentage  of  the 
total  cost  of  the  work,  the  amount  to  become  due  him 
is  exempt  from  execution  as  earnings  or  wages.^  But 
money's  due  from  boarders,  to  the  keeper  of  a  boarding- 
house,  who  rents  the  house,  furnishes  the  necessary 
furniture  and  provisions,  employs  the  servants,  and 
renders  them  personal  assistance,  are  not  exempt  as 
earnings  for  personal  services.* 

In  Nebraska  one  section  of  the  code  declared  that 
no  property  should  be  exempt  from  execution  for 
laborers'  wages,  while  another  section,  subsequently 
adopted,  provided  for  the  exemption  from  execution 
of  the  wages  of  mechanics,  clerks,  and  laborers,  while 
in  the  hands  of  their  employers;  and  then  the  courts 
were  confronted  with  a  question  which  the  legislature 
had  overlooked,  to  wit :  In  an  action  to  recover  wages 
due  the  plaintiff  as  a  laborer,  may  he  subject  to  execu- 
tion wages  due  the  defendant,  also  a  laborer?  In  this 
instance  the  court  was  able  to  solve  the  question  by 
giving  precedence  to  the  section  exempting  laborers' 
wages,  on  the  ground  that,  being  enacted  after  the 
other  section,  it  was  the  later  expression  of  the  legisla- 

1  Brown  v.  Hebard,  20  Wis.  326;  91  Am.  Dec.  408. 
»  Kuntz  V.  Kinney,  33  Wis.  510. 

*  Moore  V.  Heaney,  14  Md.  558;  Howell  v.  McDowell,  1  Atl.  Rep.  474. 
Moneys  due  a  subcontractor,  who  has  furnished  no  capitil,  are  exempt  as 
earnings.     Banks  v.  Rodenbach,  54  Iowa,  695. 

*  Shelly  V.  Smith,  59  Iowa,  455. 


717  OF  PROPERTY  EXEMPT  FROM   EXECUTION.     §§  234  a,  235 

tive  will/  111  the  same  state  it  has  been  held  that  the 
exemption  may  be  claimed  at  any  time  prior  to  the 
actual  payment  of  the  money  by  the  garnishee;  that 
though  judgment  has  been  entered  against  him,  if  he 
was  at  the  time  not  aware  that  the  debt  attached  was 
exempt,  either  he  or  the  judgment  debtor  may  there- 
after call  the  attention  of  the  court  to  the  exemption, 
and  thereby  rescue  the  debt  from  execution.^ 

§  234  a.  Pensions. — Section  4747  of  the  Revised 
Statutes  of  the  United  States  declares  that  "no  sums 
of  money  due  or  to  become  due  to  any  pensioner  shall 
be  liable  to  attachment,  levy,  or  seizure  by  or  under 
any  legal  or  equitable  process  whatever,  whether  the 
same  remains  with  the  pension-office,  or  any  officer  or 
agent  thereof,  or  is  in  course  of  transmission  to  the 
pensioner  entitled  thereto,  but  shall  inure  wholly  to 
the  benefit  of  such  pensioner."  Kelying  upon  the  last 
clause,  some  of  the  state  courts  held  that  the  object  of 
the  statute  was  to  wholly  protect  the  pension  moneys 
from  execution,  and  therefore  exempted  such  moneys 
from  seizure  after  their  receipt  by  the  pensioner.^ 
Later  decisions  hold  that  the  statute  is  fully  satisfied 
by  protecting  the  moneys  from  levy  or  garnishment 
until  they  actually  reach  the  pensioner.  After  that 
they  and  their  proceeds  are  subject  to  execution.* 

§  235.  Proceeds  of  Exempt  Property.  —  Property 
which   the  statute  designates  as  exempt  may  be  ex- 

1  Snyder  i\  Brune,  22  Neb.  189. 

2  Union  P.  R'y  v.  Suiersh,  22  Neb.  751. 

»  Folschow  V.  Werner,  51  Wis.  85;  Eckert  v.  McKee,  9  Bush,  355.  Thia 
last  case  is  overruled  in  Robion  v.  Walker,  82  Ky.  60;  5G  Am.  Rep.  878. 

♦  Webb  V.  Holt,  57  Iowa,  712;  Jardaiu  v.  F.  S.  F.  Ass'n,  44  N.  J.  L.  377; 
Cranz  v.  White,  27  Kan.  319;  41  Am.  Rep.  408;  Robion  v.  Walker,  82  Ky. 
60;  56  Am.  Rep.  878;  Payne  v.  Gibson,  5  Lea,  173. 


§235  OF  PROrERTY   EXEMPT  FROM   EXECUTION.  718 

clianged  i'or  or  converted  into  property  not  exempt. 
This  may  be  clone  either  by  tlic  act  of  the  debtor,  or 
without  his  act  and  against  his  consent.  Where  a 
debtor  voluntarily  parts  with  the  ownership  of  exempt 
property,  and  acquires  in  heu  thereof  property  not  ex- 
empt, he  no  doubt  waives  his  riglit  to  the  benefit  of 
the  exemption  law;  or,  more  properly  speaking,  any 
article  which  the  statute  has  failed  to  include  in  the 
list  of  exempt  property  cannot  be  placed  in  such  list 
by  proving  that  it  has  been  obtained  by  the  volun- 
tary sale  or  exchange  of  exempt  property.^  Debts 
due,'^  or  moneys^  realized  from  a  voluntary  sale  of  ex- 
empt property,  are  subject  to  execution.  An  excep- 
tion to  this  rule  exists  in  Georgia,  as  the  result  of  a 
very  peculiar  feature  in  the  exemption  laws  of  that 
state.  There  it  appears  that  on  taking  the  requisite 
proceedings,  the  debtor  may  have  certain  property 
segregated  and  set  apart  to  him  as  exempt.  This  prop- 
erty need  not  remain  in  specie  to  retain  its  exemption. 
The  debtor  may  use  it  for  any  proper  purpose,  may 
exchange  it  for  other  property,  may  sell  it  and  make 
purchases  with  the  proceeds,  may  increase  it  by  the  or- 
dinary process  of  growth  or  reproduction,  and  what- 
ever may  be  obtained  in  lieu  of  it,  or  added  to  it  as 
growth,  increase,  or  profits,  is  exempt.*  The  original 
amount  set  apart  as  exempt  may  therefore  be  aug- 
mented by  the  frugality  and  business  capacity  of  the 

^  Harris  v.  Fassett,  56  Iowa,  264;  Lloyd  v.  Durham,  1  Winst.  228;  Connell 
V.  Fi.sk,  54  Vt.  381;  Wygant  i>.  Smith,  2  Lans.  185;  Friedlauder  v.  Mahoney, 
31  Iowa,  311;  Pool  v.  Reid,  15  Ala.  826. 

»  Scott  V.  Brigham,  27  Vt.  561;  Edson  v.  Trask,  22  Vt.  18. 

»  Charles  v.  Oatman,  4  Pa.  L.  J.  239;  Knabb  v.  Drake,  23  Pa.  St.  489;  62 
Am.  Dec.  3.52. 

*  Morris  v.  Tennant,  56  Ga.  577;  Wade  i;.  Weslow,  62  Ga.  562;  Johnson  u. 
Franklin,  63  Ga.  378;  Dodd  v.  Thomi^sou,  63  Ga.  393;  Kujiferman  v.  Buck- 
holtd,  73  Ga.  778. 


719  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §  235 

defendant  to  an  unlimited  extent.  The  property  set 
apart  as  exempt  is  like  a  trust  estate,  and  neither  the 
original  nor  anything  proceeding  therefrom,  is  subject 
to  execution.  In  Wisconsin  the  statute  in  express 
terms  permits  a  debtor  to  sell  and  convey  his  home- 
stead without  subjecting  it  to  the  demands  of  his 
creditors.  The  proceeds  of  such  sale  retain  their  ex- 
empt character,  while  the  debtor  in  good  faith  intends 
with  them  to  procure  another  homestead.^  Where 
the  exemption  law,  instead  of  specifying  certain  prop- 
erty, exempts  property  to  the  extent  of  one  thousand 
dollars,  or  of  some  other  specified  value,  the  fact  that 
the  debtor  exchanges  his  property,  or  sells  it  and  buys 
other  property,  does  not  prejudice  his  claim  for  exemp- 
tion;^ for,  under  such  a  law,  all  property  is  equally  ex- 
empt, the  only  test  being  that  of  value.  In  Iowa  if 
the  owner  of  a  homestead  exchano;es  or  sells  it,  and 
procures  another  with  the  proceeds,  the  right  of  exemp- 
tion attaches  to  the  new  homestead.^  But  as  a  gen- 
eral rule,  we  think  that  it  must  be  held,  in  the  absence 
of  any  statutory  provision  to  the  contrary,  that  the  vol- 
untary sale  of  a  homestead  by  the  husband  and  wife  is 
a  complete  extins^uishment  of  the  homestead  ri'dit,  and 
that  the  proceeds  of  the  sale,  until  invested  in  other 
exempt  property,  are  subject  to  execution.  In  many 
instances,  the  homestead  is  of  greater  value  than  the 
law  will  protect  from  execution.  In  such  a  case,  it 
must  happen,  when  a  creditor  seeks  satisfaction  out  of 
the  homestead,  either  that  the  property  be  partitioned, 
and  the  debtor's  part  set  off  to  him,  and  the  balance 

1  Watkins  v.  Blatschinski,  40  Wis.  347. 
'  Brewer  r.  Granger,  45  Ala.  580. 

^  Pearsou  ?-.  Minturn,  )8  Iowa,  3G;    Furman  v.  Dewell,  .35  Iowa,  170;  Sar- 
gent V.  Chubbuck,  19  Iowa,  37;  Mardhall  v.  Ruddock,  28  Iowa,  4b7. 


§2"te  OF  VROPERTY  EXEMPT  FROM  EXECUTION.  720 

sold,  or  that  the  whole  be  sold,  and  the  proceeds  paid 
to  the  debtor  to  the  extent  of  his  exemption  rights, 
and  the  balance  applied  to  the  satisfaction  of  tlie  debt. 
When  the  homestead  is  thus  converted  into  money  by- 
acts  over  which  the  defendant  has  no  control,  the  pro- 
ceeds belonging  to  the  debtor  continue  to  be  exempt 
from  execution,  either  for  some  period  designated  by 
statute,  or  until  he  has  for  an  unreasonable  time  failed 
to  invest  them  in  another  homestead/     So  where  a 
debtor  owns  a  horse  of  a  greater  value  than  is  exempted 
by  statute,  he  must,  on  the  sale  of  the  horse  under  ex- 
ecution, be  allowed  out  of  the  proceeds  the  amount  of 
the  exemption;   and  these  proceeds  cannot  be  seized 
under  execution.^     The  officer  making  a  levy  may  re- 
fuse to  allow  the  defendant  liis  exemption  rights,  and 
render  it  necessary  for  the  latter  to  resort  to  an  action 
at  law.     In  such  an  event,  the  cause  of  action,  and  also 
any  judgment  that   may    be    rendered    thereon,    are 
exempt  from  execution.'     To  hold  otherwise  would  be 
to  destroy  the  efficacy  of  the  exemption  laws.     For  by 
disregarding  defendant's  rights,  and  compelling  him  to 
resort  to  legal  proceedings,  it  would  always  be  possible 
to  compel  defendant  to  convert  exempt  property  into 
property  subject  to  execution.      Therefore  if  a  judg- 
ment is  a  part  of  the  debtor's  exempt  property,  or  is 
the  result  of  the  unlawful  taking  of  such  property,  it 
is  not  subject  to  be  set  off  against  a  judgment  held  by 

»  Walsh  V.  Horine,  36  111.  238;  Mitchell  v.  Milhoan,  11  Kan.  628;  Dearing 
V.  Thomas,  25  Ga.  223;  Keyes  v.  Rines,  37  Vt.  2G0;  86  Am.  Dec.  707;  Maxey 
V.  Loyal,  38  Ga.  531;  Morgan  v.  Stearns,  41  Vt.  398;  Fogg  t;.  Fogg,  40  N.  H. 
282;  77  Am.  Dec.  715;  Pitt:ifiel(l  Bank  v.  Hawk,  4  Allen,  347- 

■■'  Moultrie  v.  Elrod,  23  Ga.  393. 

»  Anlrews  v.  Rowan,  28  How.  Pr.  126;  Collett  v.  Jones,  7  B.  Mon.  586; 
rillotson  V.  Wolcott,  48  N.  Y.  188;  Keyes  v.  Rines,  37  Vt.  260;  86  Am.  Dec 
707;  Stebbins  v.  Peeler,  29  Vt.  289;  Wilson  v.  McEIroy,  32  Pa.  St.  82. 


721  OP  PROPERTY  EXEMPT  FROM  EXECUTION.  §236 

the  defendant  in  execution.^  Where  property  is  de- 
stroyed by  fire,  and  the  owners  are  in  consequence 
entitled  to  indemnity  from  an  insurance  company,  an 
instance  may  be  afforded  of  the  voluntary  exchano-o 
of  exempt  for  non-exempt  property.  In  California  it 
seems  to  haye  been  held  that  money  due  from  an  insur- 
ance company  for  indemnity  for  loss  of  the  homestead 
residence  by  fire,  retains  the  character  of  the  premises 
destroyed,  and  is  not  subject  to  execution.^  But  in 
New  Hampshire  different  yiews  are  entertained,^ 

§  236.  Property  Exempt  because  Essential  to  the 
Use  of  Exempt  Property.  —  In  some  of  the  states, 
where  exemption  statutes  are  interpreted  with  extreme 
liberality  toward  the  claimant,  various  articles  have 
been  held  to  be  exempt,  not  because  they  were  speci- 
fied in  the  statute,  but  because  they  were  indispensable 
to  the  convenient  and  ordinary  use  of  other  articles  of 
whose  exemption  there  was  no  doubt.  In  New  York, 
harness  and  vehicles  have  been  exempted  as  part  of  a 
"team";  but  this  was  because  the  court  understood 
the  word  "team"  to  embrace  the  harness  and  vehicle, 
as  well  as  the  horses  of  which  the  team  was  composed. 
Hence  the  New  York  decision  cannot  fairly  be  cited 
as  authority  for  the  proposition  that  the  exemption  of 
a  thing  includes  all  other  things  necessary  to  its  use. 
But  in  Texas,  the  exemption  of  '*a  horse"  has  been 
held  to  include  his  saddle  and  bridle,  and  also  the  rope 
with  which  he  was  led  or  fastened.  In  these  cases 
the  court  said:    "A  horse  was  not  reserved  because  he 

1  Curleo  V.  Thomas,  74  N.  C.  51;  Myers  v.  Forsythc,  10  Busli,  .31)4;  Butner 
V.  Bowser,  104  luil.  255;  contra,  Kiiablj  v.  Drake,  23  Pa.  St.  489;  02  Am.  Dec 
352. 

'*  Houghton  V.  Loe,  50  Cal.  101;  Coouey  v.  Cooncy,  05  Barb.  524. 

»  Wooster  v.  Page,  54  N.  H.  125;  20  Am.  Hep.  128. 
Vol.  I.— 46 


§2r>6a  OF   TROrERTY   EXEMPT  FROM   EXECUTION.  722 

was  a  horse,  but  because  of  his  useful  qualities,  aud  his 
almost  indispensable  services;  but  what  would  be  the 
benefit  of  a  horse  without  shoes,  or  without  saddle  and 
bridle,  or  without  gears,  if  employed  for  purposes  of 
a^f^riculture  ?  It  cannot  be  presumed  that  the  legis- 
lature intended  that  a  debtor  should  be  reduced  to 
the  most  primitive  usage  of  riding  without  saddle  or 
bridle;  yet  this  may  often  be  the  only  alternative,  if 
such  appendages  be  held  not  exempt  from  execution. 
It  would  seem  that  by  fair  construction  the  grants  in 
the  statute  must  include,  not  only  the  subject  itself, 
but  evervthinQ'  absolutely  essential  to  its  beneficial 
enjoyment."^ 

§  236  a.  Exemptions  of  Food,  Provisions,  etc.,  are 
o-enerallv  allowed.  With  respect  to  the  amount  which 
will  be  regarded  as  exempt  as  necessary  for  family 
use  there  seem  to  be  no  decisions.  Where  an  allow- 
ance is  made  for  feed  for  live-stock,  it  will  be  con- 
strued as  limited  to  the  amount  necessary  to  maintain 
them  until  they  can  be  fatted  and  killed  for  their 
flesh,  when  that  is  the  object  for  which  they  are  kept, 
or  until  the  next  food-producing  season  when  the  stock 
ii  permanently  kept.^  Food  cannot  be  exempted  for 
stock  which  the  defendant  does  not  possess  and  has 
no  present  purpose  of  obtaining.^  The  provisions 
need  not  be  in  the  form  or  condition  required  for  im- 
mediate  use.     Corn   not  yet  ground   into  meal,*  and 

»  Cobbs  V.  Coleman,  14  Tex.  590;  Dearborn  v.  Phillips,  21  Tex.  449. 

■'  Farrell  v.  Higley,  Hill  &  D.  87;  Hall  v.  Penny,  11  Wend.  44;  25  Am. 
Dec.  GOl. 

3  Cowan  V.  Main,  24  Wis.  509;  King  v.  Moore,  10  Mich.  538. 

*  Atkimson  r.  Oatcher,  23  Ark.  100.  But  it  has  been  held  tliat  the  exemp- 
tion of  iloiir  doci  not  incbide  wheat..    Salisbury  v.  Parsons,  3G  Hun,  12. 


723  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §236b 

potatoes  not  dug,^  may  be  exempt  as  provisions.  The 
exemption  of  provisions  for  family  use  does  not  include 
food  prepared  by  the  keeper  of  a  restaurant  for  his 
customers,^  nor  groceries  constituting  part  of  the 
debtor's  stock  in  trade. ^ 

§  236  b.  Stock  in  Trade. — Statutes  exempting 
"the  tools  and  implements  of  any  mechanic,  miner,  or 
other  person,  used  and  kept  for  the  purpose  of  carry- 
ing on  his  trade  or  business,  and  in  addition  thereto, 
stock  in  trade  not  exceeding"  a  designated  amount  in 
value,  have  generally  been  held  not  to  apply  to  mer- 
chants, or  to  stock  bought  to  be  resold  as  merchan- 
dise.* Stock  in  trade,  as  the  terms  are  here  used, 
signifies,  —  1.  The  raw  materials  upon  which  the  debtor 
works  with  his  tools  and  implements;  and  2.  The 
articles  manufactured  or  in  process  of  manufacture  out 
of  such  raw  materials  with  his  tools  and  implements, 
and  kept  or  intended  for  sale.^  These  manufactured 
articles  are  exempt  as  part  of  the  debtor's  stock  in 
trade,  because  if  they  were  not,  his  entire  exemption 
of  stock  in  trade  would  be  practically  destroyed,  for 
it  would  be  idle  to  exempt  the  raw  material  and  permit 
it  to  be  seized  when  greatly  enhanced  in  value  by  the 
debtor's  labor.  But  in  Wisconsin  a  statute  exempting 
"the  tools  and  implements  or  stock  in  trade  of  any 
mechanic,  miner,  or   other  person,  used   or   kept  for 

'  Carpenter  v.  Herrington,  25  Wend.  370;  37  Am.  Dec.  239.  Whether 
vegetables  which  had  just  began  to  grow,  and  were  not  sufficiently  matured  to 
Ije  used  for  food  were  exempt,  was  a  question  upon  which  the  judges  disagreed 
in  King  v.  Moore,  10  Mich.  r^38. 

^  Coffey  V.  WiVion,  05  Iowa,  270. 

=»  State  V.  Connor,  73  Mo.  572. 

*  Grimes  v.  Bryne,  2  Minn.  80;  Guptil  v.  McFee,  9  Kan.  30. 

'  In  re  .Jones,  2  Dill.  'Ml^;  Tiequillard  r.  Bartlett,  19  Kan.  .382;  21  Am.  Rep. 
120;  Stewart  v.  Wclton,  32  Mich.  5G;  Hutchinson  v:  Roe,  44  Mich.  389. 


§2:U-.c  OF  TROrERTY  EXEMPT  FROM  EXECUTION.  724 

the  purpose  of  carrying  on  his  trade  or  bu-^inoss,  not 
exceeding  two  hundred  dt^Hars  in  value,"  was  very 
properly  held  to  apjily  to  merchants/  When  a  desig- 
nated amount  oi'  his  stock  in  trade  has  been  set  apart 
to  the  debtor  as  exempt,  his  creditors  have  no  further 
interest  in  it,  "and  it  may  be  sold  or  used  in  such  way 
as  to  serve  the  necessities  of  the  owner  without  doinc: 
wrong  to  any  one."  He  need  not  re-embark  in  the 
same  or  any  other  business  with  it.  He  may  "sell  it, 
or  keep  it  until  -a  way  opens  for  its  profitable  use." 
He  does  not  forfeit  his  exemption  by  a  purpose  not  to 
re-engage  in  business,  or  to  sell  the  property  set  aside 
to  him.^ 

§  236  c.  Exemptions  not  Confined  to  Specific  Arti- 
cles.— Sometimes  exemptions  are  granted  of  a  certain 
amount  in  value  of  personal  property,  without  any 
limitation  respecting  its  character,  or  the  debtor  is 
permitted  to  take  other  property  in  place  of  that  spe- 
cifically exempted.^  In  either  case,  every  conceivable 
chattel  may  be  exempt,  provided  it  does  not  in  itself,  or 
in  connection  with  other  property  selected  or  set  apart 
to  the  debtor,  exceed  in  value  the  amount  of  the 
exemption.  Hence  the  debtor,  when  he  is  by  statute 
allowed  as  exempt  personal  property  not  exceeding  a 
designated  value,  may  hold  free  from  levy  under  exe- 
cution fees  due  him  as  a  justice  of  the  peace,*  or  choses 
in  action,'' or  moneys  deposited  in  bank.^  If  the  debtor 
is  assigned  the  full  amount  of  his  exemption,  he  is  en- 

1  Wicker  v.  Coinstock,  52  Wis.  316. 
'■^  Rosenthal  r.  Scott,  41  Mich.  (j.32. 

»  State  V.  Fanner,  21  Mo.  160;  Mahan  v.  Scruggs,  29  Mo.  282. 
*  Dane  v.  Looinis,  51  Ala.  487. 

'  Chilcote  V.  Conley,  36  Ohio  St.  545;  Frost  v.  Naylor,  68  N.  C.  325;  Probst 
V.  Scott,  31  Ark.  652;  Strouse's  Ex'r  v.  Becker,  44  Pa.  St.  206. 
«  Fanning  v.  First  N.  B.,  76  III.  53. 


725  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §237 

titled  to  further  assignments  whenever  he  can  show 
that  the  property  has  been  taken  from  him  without  his 
fault,  or  has  been  consumed  in  maintaining  himself  or 
family,  or  has  deteriorated  in  value  without  fault  on  his 
part,  or  has  been  applied  by  him  to  the  payment  of 
debts/ 

§237.  Miscellaneous  Matters.  —  In  New  York,  a 
physician  having  books  of  his  profession  of  small  value 
was  allowed  to  retain  them  as  exempt,  on  the  ground 
that  they  constituted  part  of  his  family  library.^  The 
exemption  of  cloth  manufactured  on  a  farm  was,  in 
Kentucky,  held  to  protect  carpets  so  manufactured.^ 
In  Wisconsin,  the  exemption  of  stock  in  trade  is  con- 
fined to  stock  in  some  lawful  trade  or  business.  It 
cannot  be  invoked  by  the  keeper  of  an  unlicensed  sa- 
loon.^ Where  the  statute  exempts  an  "insurance  on 
the  life  of  a  debtor;  a  policy  agreeing  to  .pay  him  a 
certain  sum  of  money  at  the  end  of  a  stipulated  period, 
if  he  should  so  long  live,  and  if  he  should  not  so  live, 
then  that  the  sum  should  be  paid  at  his  death  to  his 
heirs,  is  a  polic}^  of  life  insurance  within  the  meaning 
of  the  statute."^  A  ferry-boat  is  not  exempt  from 
execution  because  it  is  on  a  mail  route,  and  is  used, 
among  other  purposes,  to  convey  the  United  States 
mail  across  the  stream.®  In  Texas  the  statute  ex- 
empts the  "books  belonging  to  the  trade  or  profession 
of  any  citizen.     The  professional  library  of  a  lawyer 

>  Weis  V.  Levy,  09  Ala.  211. 

*  Robinson'H  Case,  li  Ahb.  Pr.  466. 
»  Sims  V.  Reerl,  12  B.  .Mon.  5.3. 

*  Harrod  v.  Hamer,  32  Wis.  159. 

*  Briggs  V.  McCullough,  36  Cal.  542. 

«  Lathrop  v.  Middletou,  23  Cal.  257;  83  Am.  Dec.  112;  Parker  v.  Porter,  6 
La.  109. 


%'237  OF   TROPERTY   EXEMPT  FROM   EXECUTION.  72G 

may,  tluMvloro,  in  that  state,  after  liis  death,  be  sot 
aside  foi-  the  henelit  of  liis  widow  and  eliihhvn,  as  ex- 
empt property.^  In  jNlissouri  the  ninth  section  of  the 
act  respeetino-  exeeutions  exempts  ecn^tain  property 
\vhen  owned  hy  the  head  of  a  family;  ami  the  eleventh 
subdivision  of  that  section  gives  all  lawyers  the  "privi- 
leo-o  of  selecting  such  books  as  may  he  necessary  to 
their  profession  in  place  of  other  property  herein  al- 
lowed, at  their  option."  Under  this  statute  a  lawyer 
is  not  entitled  to  an  exemption  of  his  library  regardless 
of  its  value,  but  only  to  the  privilege  of  selecting  books 
in  place  of  other  exempt  property,  so  that  the  amount 
of  his  exemption  including  such  books  shall  not  exceed 
in  value  the  exemption  accorded  to  other  lieads  of 
families.^  Under  a  statute  exempting  tools,  imple- 
ments, Diaterials,  stock,  apparatus,  team,  vehicle,  horses, 
harness,  or  other  things  to  enable  any  person  to  carry 
on  the  profession,  trade,  occupation,  or  business  in 
which  he  is  wholly  or  principally  engaged,  a  firmer 
is  entitled  to  an  exemption  of  seed  wheat,  because  it 
is  unquestionably  necessary  to  the  carrying  on  of  his 
business.^  The  benefit  of  the  exemption  laws  may  be 
claimed  against  a  garnishment,*  and  is  not  lost  to  the 
defendant  bv  the  nei^lect  of  the  s^arnishee  to  claim  it 
for  him.^  In  North  Carolina  a  communion  service 
consisting  of  *'  a  silver  pitcher,  two  silver  plates,  and 
two  silver  goblets,  with  the  box  in  whicli  they  were 
kept,  used  in  the  public  worship  of  a  church,"  were 
levied  upon,  under  a  judgment  in  favor  of  the  pastor, 

1  Fowler  v.  Gilmore,  .30  Tex.  432. 

2  Brown  V.  HofFineister,  71  Mo.  411. 
8  Stilson  V.  Gibbs,  4()  Mich.  215. 

*  Fanning  v.  Fir.st  Nat.  Bank,  7G  111.  53. 
6  Jones  V.  Tracy,  75  Pa.  St.  417. 


727  OF  PROPERTY  EXEMPT  FROM  EXECUTION.  §238 

for  arrears  of  his  salary.  The  supreme  court  intimated 
that  tbey  might  be  held  exempt  under  the  constitu- 
tional guaranty  of  the  right  of  all  citizens  ''to  worship 
Almighty  God  according  to  the  dictates  of  their  own 
conscrences,"  but  preferred  to  place  its  decision  on  the 
less  questionable  ground  that  the  judgment  debtor  was 
a  mere  trustee,  having  no  beneficial  interest  in  the 
property,  and  therefore  no  estate  therein  subject  to 
execution/ 

A  statute  was  enacted  declaring  that  "  the  right  of 
any  married  woman  to  any  property,  personal  or  real, 
belonging  to  her  at  the  time  of  marriage,  or  acquired 
during  marriage  in  any  other  way  than  by  gift  or  con- 
veyance from  her  husband,  shall  be  as  absolute  as  if 
she  were  unmarried,  and  shall  not  be  subject  to  the 
disposal  of  her  husband,  nor  liable  for  his  debts."  In 
interpreting  this  law,  it  was  held  to  exempt  from  exe- 
cution, based  upon  a  debt  created  subsequently  to  its 
passage,  the  estate  of  a  husband  as  tenant  by  curtesy 
in  his  wife's  lands,  whether  such  estate  vested  before 
or  after  the  taking  effect  of  the  enactment." 

§  238.  Exemption  Continues  after  Death  of  Owner 
in  Favor  of  his  Family.  — The  decisions  frequently 
refer  to  the  fact  that  the  policy  of  the  exemption  law 
embraces  the  protection  of  the  debtor's  family  even 
more  than  of  himself  This  policy  would  be  very  in- 
adequately pursued  if  it  did  not  continue  after  the 
decease  of  the  debtor.  His  wife,  if  she  survives  him, 
then  becomes  the  householder  or  head  of  the  family; 
and  she  and  her  children,  being  thus  deprived  of  their 

»  Lord  V.  Hardie,  82  N.  C.  241. 

»Hitz  V.  National  Met.  Bauk,  111  U.  S.  722;  Wliite  v.  Hildreth,  32  \  t. 
265;  Ruf/h  v.  Ottenheimer,  C  Or.  231. 


§238  OF  PROPERT'Y  EXEMPT  FROM  EXECUTION.  728 

chief  protection  and  support,  are  more  than  ever  before 
in  need  of  all  the  rights  and  privileges  guaranteed  by 
the  exemptions  laws.  Generally,  and  perhaps  univer- 
sally, the  necessities  of  the  now  dependent  family  have 
been  recognized,  and  as  far  as  possible  provided  for  by 
laws,  under  which  the  exempt  property  is  preserved 
from  the  grasp  of  creditors,  and  set  aside  for  the  use 
of  the  family.^  These  laws  are  usually  incorporated 
into  that  portion  of  the  statute  regulating  the  settle- 
ment and  distribution  of  the  estates  of  deceased  per- 
sons, and  are  generally  interpreted  and  carried  into 
effect  by  the  probate  and  surrogate  courts. 

1  Williams  v.  Hall,  33  Tex.  212;  Fowler  v.  Gilmore,  30  Tex.  433;  Wally  v. 
Wally,  41  Miss.  657;  Mason  v.  O'Brien,  42  Miss.  420;  Brown  v.  Brown,  33 
Miss.  39;  Harden  v.  Osborne,  43  Miss.  532. 


729  HOMESTEAD  EXEMPTIONS.  §239 


CHAPTER  XV. 

HOMESTEAD  EXEMPTIONS. 

§  239.     Of  the  homestead  exemption,  and  inquiries  in  relation  thereto. 

§  240.     Who  entitled  to  seleet  a  homestead. 

§241.     How  the  homestead  right  may  be  acquired. 

§  242.     Of  the  title  necessary  to  sustain  a  homestead  claim. 

§  243.     Where  claimant  has  only  a  moiety  of  the  title. 

§  244.     Using  the  homestead  for  business  and  rental  purposes. 

§  245.     The  homestead  appurtenances. 

§  246.     The  amount  of  property  which  may  be  held. 

§  247.     Claiming  two  or  more  distinct  parcels. 

§  247  a.     Produce  and  proceeds  of  homestead. 

§  248.     Abandonment  and  forfeiture. 

§  249.     Liabilities  against  which  homesteads  are  not  exempt. 

§  249  a.     Claims  for  moneys  fraudulently  invested  in. 

§  249  b.     Exemption  against  judgments  for  torts. 

§  249  c.     Exemption  against  judgments  in  favor  of  state  or  the  United  States. 

§  249  d.     Sale  of  homesteads  to  satisfy  judgment  liens. 

§  249  e.     Attachment  liens. 

§  249  f.     Vendor's  lien  against  homestead. 

§  249  g.     Mechanic's  lien  against  homestead. 

§  249  h.     Miscellaneous  debts  against  which  homestead  is  not  exempt. 

§  250.     Lands  acquired  under  the  homestead  laws  of  the  United  States. 

§  239.  Of  the  Homestead  Exemption,  and  Inquir- 
ies in  Relation  thereto.  —  In  nearly  all  the  states  of 
the  Union,  the  dwelling  of  the  debtor,  with  its  appur- 
tenances, when  occupied  by  himself  and  family  as  their 
homestead,  is  exempt  from  execution.  In  most  of  the 
states,  the  homestead  is  so  far  held  by  a  title  different 
from  that  of  the  claimant's  other  real  estate,  that  it 
cannot  be  alienated  nor  encumbered  without  the  con- 
currence of  himself  and  his  wife ;  that  upon  his  death 
it  does  not  become  liable  to  administration  as  does  his 
other  estate ;  that  it  either   vests  in  the  wife  as  sur- 


§239  HOMESTEAD   EXEMPTIONS.  730 

vivor  of  a  kind  of  joint  tenancy/  or  continues  to  l)e 
held  as  :i  lioniestead  for  the  use  of  tlio  widow  or  chil- 
dren, or  both.  Of  the  various  incidents  attending  a 
homestead  estate  wo  shall  here  undertake  to  treat  of  but 
one,  namely,  its  exemption  from  execution.  Wo  shall 
pursue  only  those  inquiries  whith  we  feel  confident 
must  bo  pursm>(l  by  plaintifls  when  desirous  of  know- 
ing whether  certain  real  estate  may  be  made  available 
under  execution.  In  a  few  of  the  states,  homestead 
claimants  must  notify  the  officer  charged  with  the 
execution  of  the  writ  that  they  claim  the  exemption. 
Otherwise,  they  irrevocably  waive  their  rights.^  Thus 
in  Arkansas,  it  is  said  that  with  respect  to  interposing 
claims  for  exemption,  lands  and  chattels  stand  on  the 
same  footing;  that  the  debtor  must  claim  his  exemp- 
tions, and  see  to  it  that  a  supersedeas  issues ;  that  if  the 
officers  neglect  or  refuse  to  do  their  duties,  a  remedy 
exists  eitlier  by  mandamus  or  appeal;  and  that  a  fail- 
ure to  prosecute  the  remedy  is  a  waiver  of  the  right.' 
The  reverse  of  this  is  the  usual  rule.  The  homestead 
right  having  been  acquired  in  the  manner  designated 
by  the  statutes  of  the  particular  state,  all  persons  must 
take  notice  of  it.  It  need  not  be  claimed.*  As  a  gen- 
eral rule,  it  cannot  be  waived  except  by  a  declaration 
in  writing  executed  by  both  husband  and  wife  in  the 
manner  prescribed  by  statute.  Hence,  if  an  officer 
sees  proper  to  levy  upon  a  homestead,  the  claimants 

'  For  the  consiileration  of  the  subject  of  the  homestead  as  a  joint  ten- 
nancy,  see  Chapter  III.  of  Freeman  on  Cotenancy  and  Partition. 

-Rector  v.  Rotco  i,  3  Neb.  171;  Livermore  v.  Boutelle,  11  Gray,  217;  Belt 
t".  Davis,  42  Ala.  401;  Wright  v.  Grabfelder,  74  Ala.  4G0. 

'  Chambers  v.  Perry,  47  Ark.  4U3.  See  Irwin  v.  Taylor,  48  Ark.  225,  with 
respect  to  interposing  claim  of  homestead  against  attachment  proceedings. 

*  Vogler  V.  Montgomery,  rA  Mo.  .084;  Barney  v.  Leeds,  51  N.  H.  293;  Lam- 
bert V.  Kiuuery,  74  N.  C.  350;  Goldman  v.  Clark,  1  Nev.  Gil. 


731  HOMESTEAD  EXEilPTIONS.  §239 

need  not  object.  Tbe}^  maj-  regard  his  acts  as  desti- 
tute of  all  legal  authority.  They  may  permit  him  to 
make  a  sale  and  execute  a  deed  to  the  purchaser.  For 
all  these  proceedings  have  no  effect  on  their  title/  be- 
yond that  of  casting  a  cloud  over  it.  In  Iowa,  where 
the  defendant  owned  a  large  tract  of  land  occupied  by 
him  as  a  homestead,  and  a  part  thereof,  not  including 
the  dwelling  in  which  he  resided  and  the  appurtenajit 
buildings,  was  sold  under  execution,  without  first  plat- 
ting and  setting  apart  a  homestead,  it  was  held  that 
the  sale  was  voidable  only,  and  not  void;  that  it  might 
be  set  aside  in  a  direct  proceeding  between  the  parties; 
that  the  defendant  might  disregard  the  irregularity 
and  let  the  sale  stand,  and  therefore  that  the  sale 
"cannot  be  collaterally  called  in  question.""' 

The  grounds  of  this  decision  are  not  sufficiently  dis- 
closed by  the  court  to  bring  them  within  our  compre- 
hension. The  defendant  was  left  in  possession  of  the 
dwelling-house  and  its  appurtenances,  and  it  may  be 
that  the  court  regarded  his  silent  acquiescence  as  equiv- 
alent to  his  acceptance  of  the  part  le^t  him  as  his 
homestead.  Whether  the  same  conclusion  could  have 
been  reached  had  the  whole  premises  been  sold,  leav- 
ing the  debtor  no  homestead  whatsoever,  is  doubtful. 

'Dye  V.  Mann,  10  Mich.  291;  Allen  v.  Bay,  9  Iowa,  509;  Hefenstein  v. 
Cave,  6  Iowa,  374;  Hubbell  v.  Canady,  58  111.  425;  Vaiizant  v.  Vajizaut,  23 
111.  530;  Williams  v.  Swetland,  10  Iowa,  51;  Bartliolomew  i\  West,  2  Dill.  290; 
Ferguson  v.  Kumler,  25  Minn.  183;  Barnej'  v.  Leeds,  51  N.  H.  253;  Doyle  ik 
Coburn,  6  Allen,  73;  Beecher  v.  Baldy,  7  Mich.  488;  Abbott  v.  Cromartie,  72 
N.  C.  292;  21  Am.  Rep.  457;  Wing  i-.  Hayden,  10  Bush,  270;  Ring  v.  Burt,  17 
Mich.  405;  Wiggins  r.  Chance,  54  111.  175;  Pardee  v.  Liudley,  31  111.  174;  S3 
Am.  Dec.  219;  Haskins  v.  Litclificld,  31  111.  137;  Moore  v.  Titman.  33  111.  358; 
Cummings  r.  Long,  10  Iowa,  41;  85  Am.  Dec.  502;  Morris  v.  Ward,  5  Kan. 
239;  Myers  v.  Ford,  22  Wis.  139;  Myers  v.  Ham,  20  S.  C.  522.  This  latter 
case  seems  in  contlict  with  the  prior  case  of  Oliver  v.  White,  18  S.  C.  235. 

*  Martin  v.  Kiiapp,  57  Iowa,  340. 


§•239  HOMESTEAD  EXEMPTIONS.  782 

There  is  a  substantial  diiroreiieo  between  the  sale  under 
execution  i>f  a  tract  all  of  which  is  homestead,  and  the 
sale  of  a  lar!.;-er  tract  of  which  the  honu'stcad  is  a  part. 
In  the  latter  case,  the  sale  may  be  construed  as  having 
for  its  subject  that  part  of  or  interest  in  the  land  which 
is  in  excess  of  tlie  homestead.  That  view  has  been 
taken  in  Missouri,  where  the  court,  on  ejectment  being 
brouf^ht  a<^ainst  a  i>urchaser,  declared  the  sale  not  to 
be  void,  appointed  commissioners  to  admeasure  the 
l\omestead,  and  gave  judgment  only  for  the  part  as- 
signed by  them  to  the  plaintifF.^  In  several  other 
states  such  sales  are  not  treated  as  void,  but  merely  as 
being  subject  to  the  defendant's  homestead  rights,  and 
therefore  as  creating  between  the  purchaser  and  the 
defendant  in  execution  the  relation  of  tenants  in  com- 
mon.- A  preponderance  of  the  authorities,  however, 
pronounces  void  a  sale  under  execution  of  the  home- 
stead, though  the  lands  sold  exceed  in  quantity  or  value 
the  amount  which  can  be  retained  as  exempt.^  Two 
very  conclusive  reasons  support  this  conclusion.  They 
are,  first,  that  a  sale  prior  to  the  separation  of  the 
exempt  from  the  non-exempt  lands  would  render  it 
impossible  for  intending  purchasers  to  ascertain  either 
the  quantity  or  location  of  the  lands  sold,  and  would 
therefore  kievitably  lead  to  a  sale  at  an  inadequate 
price;  and  second,  a  sale  of  the  whole  premises  would 
probably  embarrass  the  debtor  in  the  exercise  of  his 

»  Crisp  r.  Criap,  8(5  Mo.  630. 

»  Letclifur.l  V.  Cary,  52  Miss.  791;  Swan  v.  Stephens,  99  Mass.  7;  Silloway 
V.  Brown,  12  Alien,  32. 

'Ferguson  r.  Kuiuler,  25  Minn.  183;  25  Minn.  156;  Kipp  v.  Bullanl,  30 
Minn.  Si;  Kerr  v.  S.  P.  Comni'rs,  8  Biss.  276;  Meba.ie  v.  Layton,  89  X.  C. 
396;  Fog;,'  V.  Fo^'g,  40  N.  H.  282;  77  Am.  Dec.  715;  HartwcU  v.  McDonald,  69 
111.  293;  McCracken  r.  Adler,  98  N.  C.  400;  McCanless  v.  Fliuchum,  98  N.  C. 
358. 


733  HOMESTEAD  EXEMPTIONS.  §240 

statutory  right  of  redemption.     "  That  right  could  not 
be  exercised  without  paying  the  entire  sum  bid,  al- 
thou'J-h  a   portion,  and    in   some   instances   perhaps  a 
greater  portion,  of  such  sum  may  have  been  bid  on  ac- 
count of  the  exempt  land."'     In  every  case  of  a  pro- 
posed levy  upon  real  estate,  the  parties  interested  in 
making  the  levy  should,  without  waiting  for  any  claim 
on  the''  part  of  the  defendant,  first  satisfy  themselves 
that  the  property  is  not  exempt  as  a  homestead.     In 
determining  this  question,  they  must  make  some,  and 
perhaps  all,  of  the  following  inquiries:   1.   Is  the  de- 
fendant a  person  on  whose  behalf,  or  on  behalf  of  whose 
family,  a  homestead  exemption  can  be  acquired?     2. 
Have  the  measures  necessary  for  acquiring  such  ex- 
emption been  taken  with  reference  to  the  realty  on 
which  the  levy  is  about  to  be  made?     3.  Is  the  de- 
fendant's title  or  estate  such  as  can  be  held  as  a  home- 
stead under  the  statute?     4.   Is  the  wse  to  which  the 
property  is  put  such  as  wholly  or  partly  destroys  its 
character  of  a  homestead?     5.  Does  the  property  ex- 
ceed  in  area  or  value  the  limit  prescribed  by  statute? 
6.  Is  the  parcel  upon  which  a  levy  is  desired  so  distant 
or  distinct  from  the  family  residence  that  it  cannot  m 
law  be  deemed  a  part  of  the  homestead  ?    7.   Has  there 
been  any  al)andonment  of  the  homestead  rights  ?     8. 
Conceding  that  a  valid  hoi^estead  claim  exists,  is  the 
liability  upon  which  the  writ  issued  one  against  which 
this  claim  can  be  asserted? 

§  240.  Who  Entitled  to  Claim  a  Homestead.  — 
There  are  states  in  which  an  unmarried  man  liavmg  no 
family  dependent  on  him  for  support,  is  entitled  to  the 

»  Mohan  v.  Smith,  30  Mian.  259. 


I '240  HOMESTEAD  EXEMPTIONS.  734 

full  benefit  of  tlio  liomestead  exemption.^  There  are 
other  t^tiitcs  in  wliich  sucli  a  man  is  not  entitled  to  the 
same  exemption  as  a  married  man;  but  is,  nevertheless, 
entitled  to  a  homestead  exemption  of  less  value.  But 
the  ehief  objeet  of  the  liomestead  laws  is  to  shelter  the 
fiimily.  In  the  majority  of  the  states,  the  elaimant 
must  be  the  head,  or  one  of  the  heads,  of  a  (iimily.^ 
The  head  of  a  family  is  generally  a  husband  or  fatlier. 
This  is  not,  however,  an  invariable  rule.  A  wife  may, 
in  most  states,  elaim  the  benefit  of  the  homstead  laws. 
But  a  person  may  be  the  head  of  a  family,  within  the 
meaning  of  the  exemption  statutes,  without  being  mar- 
ried, and  without  being  a  parent.^  Thus  a  man  who 
lias  living  with  liim  his  mother,  or  sister,  or  otlier  per- 
sons dependent  on  him  for  support,  is  entitled  to  a 
homestead  exemption.*  A  woman  supporting  her 
ilLgitimate  child  is  UKae  within  the  need,  and  as  much 
entitled  to  the  benefit,  of  the  homestead  laws  as  though 
she  had  been  a  wedded  mother.^  We  know  not  why 
any  other  woman  who  supports  a  dependent  relative 
should  not  be  entitled  to  a  homestead,  just  as  her  brother 
would  be  if  he  were  performing  the  same  meritorious 
act.  But  the  courts  have  illogieally  and  ungallantly 
determined    otherwise.^     If  the    family  consists  of  a 

»  Greenwood  v.  Maddox,  27  Ark.  (548;  Myers  v.  For.l,  22  Wi.s.  139. 

■^  Folsoin  V.  Carli,  5  Minn.  333;  80  Am.  Dec.  429;  llevalk  v.  Kraemer,  8 
Cal.  GO;  08  Am.  Dec.  304;  Tillotson  v.  Millard.  7  Minn.  520;  Gee  v.  Moore, 
14  Cal.  472;  Bowman  r.  Norton,  1(5  Cal.  213;  Davenport  v.  Alston,  14  Ca.  271: 
KitcheU  v.  Burgwiu,  21  111.  43;  Morrison  v.  McDauicl,  30  Miss.  217;  Scars  v. 
Hanks,  14  Oiiio  St.  298;  84  Am.  Dec.  378;  Griffin  v.  Sunderland,  14  Barb.  45G. 
A.-i  alien  resident  is  entitled  to  a  homestead.  McKenzie  u.  Murpliy,  24  Ark. 
155. 

^  See  §  222. 

♦  Parsons  v.  Living:<ton,  11  Iowa,  104;  77  Am.  Dec.  135. 
»  Ellis  V.  White,  47  Cal.  73. 

•  Woodworth  V.  Comstock,  10  Allen,  425;  Lathrop  v.  Loan  Ass'n,  45  Ga.  483. 


735  HOMESTEAD  EXEMPTIONS.  §2^10 

parent  and  his  or  her  children,  the  latter  must,  if  adults, 
be  unable  to  support  themselves,  through  some  infirmity 
other  than  indolence.  ''Adults,  male,  or  if  unmarried, 
female,  wlio  liave  robust  health,  and  all  usual  faculties, 
lie  under  the  necessity  of  supporting  themselves,  unless 
they  find  others  wilhng  to  support  them  who  can  do  so, 
without  making  such  service  a  foundation  for  exempt- 
ing their  property  from  liability  for  the  payment  of 
their  just  debts." ^  As  the  fact  that  a  person  is  un- 
married is  not  conclusive  against  his  or  her  claim,  so 
the  fact  that  he  or  she  is  married  is  not  conclusive  in 
fivor  of  the  claim.  One  may  be  the  head  of  a  family 
without  being  married,  and  one  may  be  married  with- 
out being  the  Iiead  of  a  family.  A  man  living  in  one 
state,  with  a  family  residing  in  another  state,  is  not 
entitled  to  the  benefit  of  a  homestead  exemption  as  the 
head  of  a  family  in  the  former  state.  The  property 
claimed  must  first  be  made  the  home  of  the  family.' 
But  a  married  woman,  having  her  niece  living  with 
her,  may  make  a  valid  homestead  claim,  though  her 
husband  resides  elsewhere.^  It  would  probably  be 
otherwise  if  it  were  sljown  that  he  al«o  had  a  home- 
stead; for  the  law  does  not  allow  one  to  each  of  the 
spouses.*  In  some  instances  persons  have  been  allowed 
to  retain  homesteads  after  ceasintj;  to  be  heads  of  fam- 
ilies;  as  where  the  wife  and  children  have  either  died, 
or  have  permanently  abandoned  their  home,  leaving 
it  in  the  possession  of  the  husband.^     We  doubt  the 

>  Decuir  v.  Benker,  33  La.  Ann.  320. 

«  Cary  v.  Tice,  G  Cal.  625;  Beucilict  v.  Bunnell,  7  Cal.  245;  Meyer  r.  Claus, 
15  Tex.  51G;  KeiLin  v.  Berney,  31  Ala.  192;  Farlin  v.  Snook,  26  Kan.  397. 

3  GambjttJ  r.  Brock,  41  Cal.  78. 

♦  Dwinell  c.  E  hvards,  23  Ohio  St.  603. 

'  Doyle  V.  Col  .urn,  6  Allen,  71;  Silloway  v.  Browii,  12  Allen,  30;  Barney  v. 
Leeds,  51  N.  IL  25:];  Bipua  v.  Deer,  lOG  Ind.  135. 


8241  HOMESTEAD  EXEMPTIONS.  736 

souiuliiess  of  these  deeisions.  When  the  family-  ceases, 
we  think  the  right  to  exemption  as  a  married  person, 
or  as  a  householder  or  head  of  the  family,  must  also 
terminate.^  The  fact  that  husband  and  wife  are  only 
temporarily  in  the  state,  and  intend  to  migrate  as  soon 
as  they  can  make  a  certain  amount  of  money,  does  not 
disqualify  them  from  claiming  a  liomestead.'^  An  alien 
domiciled  in  Arkansas  was  held  to  be  there  entitled  to 
the  benefit  of  the  homestead  exemption,  although  the 
statute  did  not  profess  to  extend  such  benefits  to  any 
persons  except  "free  white  citizens  of  the  state,  male 
or  female."^  Domicile  in  a  state  is  essential  to  a  suc- 
cessful claim  to  a  homestead  exemption  under  the  lawa 
of  some  of  the  states,*  and  removal  from  the  state  op- 
erates as  an  abandonment  of  a  homestead  previously 
existinir/  Where  the  defendant  is  entitled  to  a  home- 
stead  exemption  as  the  head  of  a  family,  he  must 
possess  that  status  at  the  time  of  the  levy.  If  the 
levy  is  proper  when  made,  the  judgment  creditor  thereby 
acquires  a  special  lien  which  cannot  be  divested  by  the 
defendant  subsequently  becoming  the  head  of  a  family.® 

§  241.  How  the  Homestead  Exemption  may  be 
Created.  —  The  first  thing  to  be  done  to  impress  the 
homestead  exemption  on  property  is  to  make  it  a  hovie. 
The  law  does  not  exempt  future  homesteads.  It  throws 
its  protection  around  only  that  which  is  already  con- 
secrated bv  beinof  the  residence  of  the  claimant  as  the 

*  Revalk  i-.  Kraemer,  8  Cal.  60;  68  Am.  Dec.  304;  Cooper  v.  Cooper,  24- 
Ohio  St.  488;  7  Chic.  L.  N.  217;  Gee  v.  Moore,  14  Cal.  472. 

'  Dawley  v.  Ay  res.  23  Cal.  108. 

^  McKeazie  v.  Murphy,  24  Ark.  155. 

*  Alston  V.  Ulmau,  3!)  Tex.  157. 

*  Baker  v.  Leggett,  98  N.  C.  304;  Finley  v.  Saunders,  98  N.  C.  462. 

®  Pender  v.  Lancaster,  14  S.  C.  25;  33  Am.  Rep.  720;  Solders  v.  Lane,  40 
Ohio  St.  345. 


737  HOMESTEAD  EXEMPTIONS.  §241 

home  of  himself  and  his  family.  The  declaration  which 
the  claimant  may  be  required  to  file  and  record  does 
not  create  a  homestead.  It  is  merely  legal  notice  that 
one  already  exists,  and  that  the  claimant  desires  that  it 
shall  not  be  longer  subject  to  forced  sale  under  execu-  . 
tion.  The  homestead  exemption  cannot  exist  upon 
property  upon  which  the  claimant  and  his  family  have 
never  resided.^  The  fact  that  there  is  a  homestead 
must  precede  the  declaration  of  its  existence.  The 
declaration  is  not  only  false :  it  is  also  invalid  if  it  pre- 
cedes this  fact.  Where  the  law  requires  a  declaration 
to  be  filed,  the  filing  is  of  no  consequence,  unless  it  can 
be  shown  that  the  premises  were  then  occupied  as  a 
homestead.  It  is  not  sufficient  that  they  had  been  so 
occupied  before,  or  that  they  are  so  occupied  after,  the 
filing.^  In  New  Hampshire,  buildings  having  been 
completed  for  the  purposes  of  occupation  as  a  home, 
the  owner  commenced  to  move  in.  While  he  was 
moving,  and  after  part  of  his  furniture  was  in  the 
house,  an  attachment  was  levied.  But  it  was  held 
that  the  homestead  character  had  been  impressed  on 
the  property,  and  took  precedence  over  the  attach- 
ment.^    So  in  Iowa,  where  a  debtor  removed  to  D.  to 

1  Kaster  v.  McWilliams,  41  Ala.  302;  Cook  v.  McChristian,  4  Cal.  23;  Moss 
V.  Warner,  10  Cal.  29G;  Holden  v.  Pinney,  6  Cal.  234;  Benedict  v.  Bunnell,  7 
Cal.  245;  Tourville  v.  Pierson,  39  111.  446;  Charless  v.  Lamberson,  1  Iowa,  435; 
Christy  v.  Dyer,  14  Iowa,  438;  81  Am.  Dec.  493;  Cole  v.  Gill,  14  Iowa,  527; 
Elston  V.  Robinson,  23  Iowa,  208;  Brown  v.  Martin,  4  Bu.sh,  47;  Dyson  v. 
Sheley,  11  Mich.  527;  Coolidge  v.  Wells,  20  Mich.  79;  Campbell  v.  Adair,  45 
Miss.  170;  Kresin  v.  Mall,  15  Minn.  116;  Hoitt  v.  Webb,  .36  N.  H.  158;  True 
V.  Estate  of  Morrill,  28  Vt.  672;  Morgan  v.  Stearns,  41  Vt.  398;  Davis  v.  An- 
drews, 30  vt.  678;  Philleo  v.  Snialley,  23  Tex.  498;  Franklin  v.  Cofifee,  IS  Tex. 
413;  70  Am.  Dec.  292;  Russ  v.  Henry,  58  Vt.  388;  Williams  v.  Dorris,  31  Ark. 
468;  Tillotson  v.  Mdlard,  7  Minn.  513;  82  Am.  Dec.  112. 

*  Gregg  V.  Bostwick,  33  Cal.  227;  91  Am.  Dec.  637;  Mann  v.  Roger.s,  35 
Cal,  316;  Prescott  v.  Prescott,  45  Cal.  58;  Lee  v.  Miller,  ll"  Allen,  47. 

»  Fogg  V.  Fogg,  40  N.  H.  282;  77  Am.  Dec.  715. 
Vol.  I. -47 


X 


§241  HOMESTEAD  EXEMPTIONS.  738 

occupy  promises  purchased  by  him,  but  being  obHged 
to  wait  lor  the  completion  of  repairs,  put  his  goods  in 
the  house  and  boarded  his  family  till  the  repairs  could 
be  completed,  it  was  adjudged  that  the  property  be- 
came a  homestead  when  the  goods  were  put  therein.^ 
In  Texas  it  seems  that  preparation  to  improve,  accom- 
panied by  an  intention  to  reside  on  the  premises  as  a 
home,  might  be  sufficient  to  create  a  homestead  exemp- 
tion.' The  fact  that  the  debtor  was  at  the  time  of  the 
levy  building  a  house  on  the  lot  levied  upon,  with  the 
intent  to  use  and  occupy  it  as  his  homestead,  will  not 
entitle  him  to  its  exemption.^  In  Wisconsin,  on  the 
other  hand,  the  purchase  of  land  with  intent  to  occupy 
it  as  a  homestead,  evidenced  by  overt  acts  in  fitting  it 
up  for  that  purpose,  followed  within  a  reasonable  time 
by  its  actual  occupancy  as  a  homestead,  exempts  it  from 
the  time  of  its  purchase.*  The  reasons  for  this  decision 
were  thus  stated  by  the  court;  ''The  acquisition  of  a 
completed  homestead  is  seldom  instantaneous.  Gen- 
erally, it  requires  years  of  industry  and  economic  liv- 
ing. The  purpose  necessarily  precedes  the  inception 
of  the  work,  and  that  is  followed  by  successive  steps 
until  completion  is  attained.  The  land  must  be  ac- 
quired, the  location  of  the  dwelling-house  designated, 
the  cellar  dug,  the  materials  procured,  the  foundations 
laid, .the  superstructure  erected,  and  then  all  fitted  for 
a  dwelling-house,  before  actual  occupancy  with  the 
family  can  take  place.  These  successive  steps  in  the 
acquisition  of  a  completed  homestead,  made  in  good 
faith,  come  within  the  spirit  of  the  statute,  and  are 
each  entitled  to  the  protection  afforded  by  it." 

1  Neal  V.  Coe,  35  Iowa,  407. 

2  Franklin  v.  CofiFee,  18  Tex.  413;  70  Am.  Dec.  292. 

*  Patrick  v.  Baxter,  42  Ark.  115. 

*  Scofield  V.  Hopkins,  01  Wis.  370. 


739  HOMESTEAD  EXEMPTIONS.  §241 

Residing  on  part  of  the  premises  will  not  enable  the 
claimant  to  impress  other  parts  with  the  homestead 
characteristics   or  exemption.^     A  tract  of  land  was 
devised  by  a  father  to  his  son.     About  five  acres  were 
enclosed,  and  had  thereon  a  dwelling  in  which  the  son 
resided.     The  balance  had  been  leased  by  the  father 
for  farming  purposes,  and  was  being  cultivated  by  the 
lessee,  who  resided  thereon.     The  son  filed  a  declara- 
tion, claiming  the  whole  tract  as  his  homestead;  but 
such  declaration  was  declared  inoperative  except  as  to 
the  five  acres.^     "  It  is  impossible,"  said  the  court,  "to 
conceive  of  land  constituting  part  of  a  'homestead'  (as 
the  term  is  commonly  employed)  of  a  family  residing 
in  a  certain  dwelling-house,  which  is  not  used  at  all  by 
those  living  in  the  dwelling-house,  and  the  right  to  use 
or  occupy  which  is  in  no  manner  annexed  to  or  con- 
nected with  the  occupancy  of  the  house,  but  which,  to 
the  contrary,  is  used  and  possessed  by  the  occupants  of 
another  dwelling-house,  —  who  alone  have  the  right  to 
use  and  possess  the  land, — and  is  part  of  the  'home'  of 
those  residing  in  that  house." 

But  one  homestead  can  be  acquired  or  in  existence 
at  the  same  time.  No  man  can  hold  two  homesteads. 
Nor  can  any  one  occupy  such  a  relation  to  two  or  more 
residences  or  places  that  he  may  elect  which  he  will 
claim  as  his  homestead.  Before  either  place  can  be 
successfully  claimed  as  exempt,  it  must  have  become 
the  homestead  of  the  debtor.^  In  a  majority  of  the 
states  the  fact  that  premises  are  occupied  as  a  home- 
stead is  all  that  is  necessary  to  render  them  exempt 

1  Casselman  v.  Packard,  16  Wis.  114;  82  Am.  Dec.  710. 

2  Estate  of  Crowey,  71  Cal.  300. 

a  Saharas  v.  Feulon,  5  Kan.  592;  Wright  V.  Dunning,  46  111.  371;  Tourville 
V.  Pierson,  39  111.  446. 


y 


§242  HOMESTEAD  EXEMPTIONS.  740 

from  execution.  But  in  the  other  states  a  declaration 
of  homestead  must  be  made  and  filed  for  record,  or 
some  other  kind  of  record  notice  must  be  given,  show- 
ing the  world  that  the  occupants  intend  to  insist  upon 
their  exemption  right.^ 

§  243.  Of  the  Title  Necessary  to  Sustain  a  Home- 
stead Claim.  —  The  legislators  who  enact  homestead 
laws  are,  no  doubt,  chiefly  intent  upon  protecting  the 
debtor  and  his  family,  regardless  of  the  title  by  which 
the  homestead  is  held.  Such  as  it  is,  the  family  is  en- 
titled to  retain  it.  Whether  it  be  an  estate  in  fee-sim- 
ple, free  from  encumbrances,  or  an  estate  of  less  dignity 
and  value,  or  a  mere  possessory  interest,  as  long  as  the 
debtor  can  occupy  it  as  a  home,  the  creditor  should  not 
be  allowed  to  take  it  under  his  execution.^  The  object 
of  the  homestead  law  is  to  protect  the  possession.  It 
applies  as  well  to  possession  held  under  an  equitable  as 
under  a  letjal  title.^     Whether  the  debtor  holds  in  fee- 

^  The  states  and  territories  in  which  no  formal  declaration  or  selection  of 
homestead  is  essential  are  Arizona,  Arkansas,  Connecticut,  Dakota,  Florida, 
Illinois,  Iowa,  Kansas,  Louisiana,  Maryland,  Minnesota,  Montana,  Mississippi, 
Missouri,  Nebraska,  New  Hampshire,  North  Carolina,  Ohio,  Pennsylvania, 
South  Carolino,  Tennessee,  Texas,  Utah,  Vermont,  Wyoming,  and  Wisconsin. 
But  in  Alabama,  California,  Colorada,  Georgia,  Idaho,  Indiana,  Kentucky, 
Maine,  Massachusetts,  ISIichigan,  Nevada,  New  Jersey,  New  York,  Virginia, 
Washington  Territory,  and  West  Virginia  the  homestead  must  be  selected,  and 
a  declaration  or  other  notice  of  such  selection  placed  on  record. 

2  Brooks  V.  Hyde,  37  Cal.  373;  McClurkin  v.  McClurkin,  46  111.  331;  Deere 
V.  Chapman,  25  111.  GIO;  79  Am.  Dec.  350;  Conklin  v.  Foster,  57  HI.  104;  Nor- 
ris  V.  Moulton,  34  N.  H.  392;  Colwell  v.  Carper,  15  Ohio  St.  279;  Pclan  v.  De 
Berard,  13  Iowa,  53;  Johnson  v.  Richardson,  33  Miss.  4G2;  Poe  v.  Hardie,  65 
N.  C.  447;  Tyffe  v.  Beers,  18  Iowa,  4;  contra,  Pezzaler  v.  Campbell,  46  Ala. 
35,  holding  that  the  claimant  must  be  the  oivner. 

»  Bartholomew  v.  West,  2  Dill.  291;  Morgan  v.  Stearns,  41  Vt.  398;  Cheat- 
ham V.  Jones,  68  N.  C.  153;  Doane  v.  Doane,  46  Vt.  485;  Blue  v.  Blue,  38  111. 
18;  87  Am.  Dec.  267;  Allen  v.  Hawley,  66  111.  168;  Orr  v.  Shraft,  22  Mich.  260; 
McKeev.  Wilcox,  11  Mich.  358;  83  Am.  Dec.  743;  Tomlin  w.  Hilyard,  43  111. 
300;  92  Am.  Dec.  118;  Farrant  v.  Swain,  1  L.  &  Eq.  Reporter,  9;  McCabe  v. 
Mazzuchelli,  13  Wis.  481;  Dreutzer  v.  Bell,  11  Wis.  114;  contra,  Thurston  v. 
Maddox,  6  Allen,  427;  Robinett  v.  Doyle,  2  West.  L.  M.  585. 


y 


741  HOMESTEAD  EXEMPTIONS.  §242 

simple  absolute,  for  life,  or  for  a  term  of  years,^  the 
reason  for  applying  the  exemption  exists  with  equal 
force.  The  possession  of  land  held  under  a  contract  to 
purchase  may  be  subjected  to  a  homestead  claim.^  If 
so  claimed,  the  husband  cannot  dispose  of  it  without 
the  assent  of  the  wife,  and  if  he  refuse  to  complete  his 
purchase,  she  should  be  permitted  to  do  so  for  the  pro- 
tection of  her  interest.^  Title  acquired  after  filing  a 
declaration  of  homestead  is  also  protected  from  forced 
sale,  and  seems  to  become  an  inseparable  part  of  the 
homestead  estate.  In  California  a  declaration  of  home- 
stead was  filed  by  one  in  possession,  the  fee  being  in  a 
stranger.  Afterward,  prior  to  the  sale  under  execution, 
but  subsequently  to  the  docketing  of  a  judgment  against 
him,  the  claimant  became  the  owner  of  the  fee.  The 
purchaser  at  the  sheriff's  sale  brought  an  action  to 
recover  possession.  In  determining  that  this  action 
could  not  be  sustained,  the  court  justified  the  decision 
by  the  following  train  of  reasoning:  "At  the  time  the 
judgment  was  docketed  and  became  a  lien,  the  prem- 
ises constituted  the  homestead  of  the  defendant,  as  to 
everybody  except  the  owner  of  the  land.  There  is  no 
question  made  as  to  its  being  a  homestead,  if  a  party 

1  Platto  V.  Cady,  12  Wis.  461;  78  Am.  Dec.  752. 

»  McManus  v.  Campbell,  .37  Tex.  267;  Allen  v.  Hawley,  66  111.  164. 

^McKee  v.  Wilcox,  11  Mich.  358;  83  Am.  Dec.  743.  But  see  Farmer  v. 
Simpson.  G  Tex.  310.  In  some  of  the  states,  a  husband  cannot  claim  as  exempt, 
as  a  homestead,  lands  of  his  wife  in  his  occupation.  Davis  v.  Dodds,  20  Ohio 
St.  473;  Holman  v.  Martin,  12  Ind.  553;  Herschfeldt  v.  George,  6  Mich.  457. 
But  where  a  husband  has  an  estate  in  his  wife's  land,  by  virtue  of  the  marriage, 
entitling  him  to  possession  for  life,  or  otherwise,  we  see  no  reason  why  it  should 
not  be  deemed  his  homestead  when  so  occupied  and  dedicated.  Tourville  v. 
Pierson,  39  111.  446;  Boyd  v.  Cudderback,  31  111.  113;  Dreutzer  v.  Bell,  IJ  Wis. 
114;  Orr  v.  Shraft,  22  Mich.  260;  Newton  v.  Clarke,  4  W.  L.  Gaz.  109.  When 
the  claimant's  estate  in  the  land  terminates,  he  cannot  hold  the  buikUmj/i  as  a 
homestead.  Brown  v.  Keller,  32  111.  152;  83  Am.  Dec.  258.  In  other  words, 
there  can  be  no  homestead  estate  in  a  mere  structure  when  the  owner  has  not 
even  a  possessory  interest  in  the  soil. 


§242  HOMESTEAD  EXEMPTIONS.  742 

having  a  naked  possession  only,  the  title  being  m  a 
stranger,  can  acquire  a  homestead  riglit  in  the  land  so 
possessed.  The  statute  does  not  specify  the  kind  of  title 
a  party  shall  have  in  order  to  enable  him  to  secure  a 
homestead.  It  says  nothing  about  title.  The  homestead 
right  given  by  the  statute  is  impressed  on  the  land  to 
the  extent  of  the  interest  of  the  claimant  in  it,  —  not  on 
the  title  merely.  The  actual  homestead,  as  against 
everj'body  who  has  not  a  better  title,  becomes  impressed 
with  the  legal  homestead  right  by  taking  the  proceedings 
prescribed  by  the  statute.  The  estate  or  interest  of  the 
occupant,  be  it  more  or  less,  thereby  becomes  exempt 
from  forced  sales  on  execution,  and  can  only  be  affected 
by  voluntary  conveyances  or  relinquishment  in  the  mode 
prescribed.  The  land,  in  this  instance,  as  to  everybody 
having  no  superior  title,  became  the  homestead  of  the 
defendant,  for  all  the  purposes  of  protection  against 
forced  sales  and  voluntary  conveyances  in  any  other 
than  the  statutory  mode,  as  effectually  as  if  the  de- 
fendant had  held  the  title  in  fee-simple.  There  was 
nothino-  which  the  sheriff  was  authorized  to  sell  under 

O 

execution.  The  fact  that  the  defendant,  after  the  at- 
taching of  the  homestead  right,  acquired  the  true  title 
from  a  stranger,  does  not  affect  the  question.  This  did 
not  vitiate  the  homestead  right  which  had  attached  to 
the  land,  and  given  an  independent  estate  not  subject 
to  execution.  The  title  so  acquired  cannot  be  con- 
sidered as  a  thing  separate  and  apart  from  the  land 
subject  to  sale  and  conveyance,  in  the  hands  of  the 
homestead  claimant,  so  as  thereby  to  affect  the  home- 
stead right.  By  filing  the  declaration,  the  party  indi- 
cates his  intention  to  make  the  land  his  homestead; 
and  if  he  afterwards  acquires  an  outstanding  title,  it 


748  HOMESTEAD  EXEMPTIONS.  §242 

attaches  itself  to  the  homestead  already  acquired,  and 
perfects  the  homestead  right.  If  it  were  otherwise,  a 
homestead  could  not  be  secured  which  would  be  safe 
against  forced  sales,  unless  there  was  at  the  time  a 
perfect  title  in  fee-simple  in  ffte  party  who  seeks  the 
homestead  right.  In  case  of  a  title  in  any  respect  im- 
perfect, the  claimant  could  not  perfect  his  title  to  his 
homestead,  except  at  the  risk  of  losing  it  altogether, 
through  the  intervention  of  a  creditor,  and  by  the  very 
means  adopted  to  render  it  more  secure;  and  under 
such  a  construction  of  the  statute  it  would  not  be  avail- 
able to  the  greater  portion  of  the  class  in  this  state  who 
need  it  most."  ^  In  truth,  the  question  is  not  one  of 
title,  but  of  use.  Are  the  premises  the  debtor's  home- 
stead as  a  matter  of  fact?  If  so,  such  estate  as  he  has 
in  them  is  exempt  from  execution.^  If,  on  the  other 
hand,  the  estate  is  not  consistent  with  the  occupation 
of  the  land  by  the  debtor  as  his  home,  it  is  not  exempt. 
He  may  have  an  estate  in  reversion  or  remainder. 
This,  however  valuable,  gives  him  no  right  to  the  pos- 
session, and  therefore  no  right  to  occupy  the  premises 
as  his  home.  The  homestead  right,  if  any  exists,  is  in 
the  holder  of  the  estate  in  possession.  Hence  a  re- 
versioner or  remainderman,  because  his  estate  is  incom- 
patible with  the  existence  of  a  homestead  in  fact,  cannot 
secure  its  exemption  from  forced  sale  by  claiming  it  as 
a  homestead.^ 


*  Spencer  v.  Geissman,  37  Cal.  99;  99  Am.  Dec.  248.     Though  a  claim  of 

^homestead  may  protect  a  possessory  title  from  execution  against  the  occupant, 

it  can  interpose  no  obstacle  to  the  recovery  of  the  property  by  the  true  owner 

in  an  action  therefor.     Mann  v.  Rogers,  35  Cal.  S16;  Calderwood  v.  Tevis,  23 

Cal.  335;  McClurkin  v.  McClurkin,  46  111.  327. 

'^  King  V.  Sturges,  56  Miss.  606;  Hogan  v.  Manners,  23  Kan.  631. 

»  Murchison  v.  Plyler,  87  N.  C.  79;  Estate  of  Crowey,  71  Cal.  300. 


§243  HOMESTEAD  EXEMPTIONS.  744 

§  243.  Whether  Homestead  Rights  can  Attach  to 
an  Undivided  Interest  in  lands,  in  the  absence  of  an 
express  provision  of  the  statute  to  that  effect,  is  a  ques- 
tion on  which  the  judges  have  not  agreed.  On  the  one 
hand,  it  has  been  thought  that  the  provisions  of  the 
homestead  law  conteniplatod  that  the  interest  to  which 
they  should  be  applied  should  be  susceptible  of  an  enjoy- 
ment in  severalty.  When  the  value  of  the  land  claimed 
exceeds  in  amount  the  limit  of  the  homestead  right, 
the  statute  provides  means  by  which  the  homestead 
may  be  segregated;  aitd  that,  as  segregated,  it  may  be 
set  off  to  the  judgment  debtor.  No  such  segregation 
could  take  place  when  the  interest  of  the  claimant  was 
in  a  moiety  only,  for  in  that  case  there  is  no  place 
\vhich  he  can  lawfully  take  into  his  exclusive  posses- 
sion. For  these  reasons,  the  claim  of  a  co-tenant  to  a 
homestead  has  been  denied  in  many  of  the  cases  in 
which  it  has  been  questioned.^  In  California,  the  doc- 
trine that  a  homestead  could  not  be  acquired  in  un- 
divided property  was  frequently  enforced,  and  was 
applied  in  some  extreme  cases.  In  one  instance,  the 
lands  attempted  to  be  dedicated  as  a  homestead  be- 
longed to  the  husband  and  wife  and  their  child,  as 
tenants  in  common.  The  court  could  see  no  distinction 
between  this  case  and  one  in  which  the  co-tenants  were 
entire  strangers  to  one  another.^  In  another  instance, 
the  homestead  had  been  acquired  under  a  conveyance 
purporting  to  convey  the  same  in  severalty,  and  was 

1  West  V.  Ward,  26  Wis.  580;  Wolf  v.  Fleischacker,  5  Cal.  244;  63  Am. 
Dec.  121;  Elias  v.  Verdugo,  27  Cal.  418;  Reynolds  v.  Pixley,  6  Cal.  167;  Kel- 
lersberger  v.  Copp,  6  Cal.  165;  Bishop  v.  Hubbard,  23  Cal.  517;  83  Am.  Dec. 
132;  Ward  v.  Huhn,  16  Minn.  161;  Thurston  v.  Maddocks,  6  Allen,  429; 
Kingsley  v.  Kingsley,  39  Cal.  665;  Cameto  v.  Dupuy,  47  Cal.  79;  Henderson  v. 
Hay,  26  La.  Ann.  156. 

^  Giblin  V.  Jordan.  6  Cal.  417. 


745  HOMESTEAD  EXEMPTIONS.  §243 

acquired  and  held  under  the  claim  and  belief,  on  the 
part  of  the  occupant,  that  he  was  the  sole  owner.     The 
court  could  not  understand  that  these  facts  authorized 
any  exception  to  the  general  rule.^     And  where,  when 
acquired,  the  homestead  was  held  in  severalty,  the  con- 
veyance of  an  undivided  interest,  because  it  turned  the 
homestead  into  a  co-tenancy,  was  deemed  an  abandon- 
ment of  the  homestead.^     On  the  other  hand,  in  several 
of  the   states,  a  homestead  claim  upon  an  undivided 
interest  has  been  sustained,  and  all  distinction  in  this 
respect,  between  estates  in   severalty  and   estates  in 
co-tenancy,  denied.^     In  California,  the  state  in  which 
the  claim  of  a  co-tenant  to  exemption  was  first  denied, 
the  legislature  so  changed  the  statute  that  a  part  owner 
can  hold,  as  a  homestead,  lands  of  which  he  is  in  the 
exclusive  possession.*     But  we  see  no  sufiScient  reason, 
even  in  the  absence  of  statutes  directly  bearing  upon 
the  subject,  for  holding  that  a  general  homestead  act 
does  not  apply  to  lands  held  in  co-tenancy.     The  fact 
that  a  homestead  claim  might  savor  of  such  an  assump- 
tion of  an  exclusive  right  as  is  inconsistent  with  the 
rights  of  the  other  co-tenant,  and  that  the  maintenance 
of  such  claim  might  interfere  with  proceedings  for  par- 
tition, form  no  very  satisfactory  reason  for  denying  the 
exemption.     If  the  rights  of  the  other  co-tenant  are 
threatened    or  endangered,  he   alone   should  be   per- 
mitted to  call  for  protection  and  redress.     The  law  will 

1  Seaton  v.  Son,  32  Cal.  483. 

*  Kellersberger  v.  Copp,  6  Cal.  5G5. 

»  Horn  V.  Tufts,  38  N.  H.  483;  Thorn  v.  Thorn.  14  Iowa,  53;  81  Am.  Dec. 
451;  Tarrent  v.  Swain,  15  Kan.  146;  2  Cent.  L.  J.  754;  McEh-oy  v.  Bixby,  36 
Vt.  254;  84  Am.  Dec.  GS4;  Greenwood  v.  Maddox,  27  Ark.  GGO;  Robinson  v. 
McDonald,  II  Tex.  385;  G2  Am.  Doc.  480;  Williams  v.  Wethered,  37  Tex.  1^1; 
Smith  V.  Deschaumes,  37  Tex.  429;  Bartholomew  v.  West,  2  Dill.  293. 

♦  Statute  18G8,  p.  IIG;  Higgins  v.  Higgina,  46  Cal.  259.  See  sec.  1238,  CaU- 
fomia  Civil  Code. 


§243  HOMESTEAD  EXEMPTIONS.  746 

not  sanction  any  use  of  the  homestead  in  prejudice  of 
his  rights.  But  as  long  as  his  interests  are  respected, 
or  so  nearly  respected  that  he  feels  no  inclination  to 
complain,  why  should  some  person  having  no  interest 
in  the  co-tenancy  be  allowed  to  avail  himself  of  the  law 
of  co-tenancy  for  his  own  and  not  for  a  co-tenant's  gain  ? 
The  homestead  laws  have  an  object  perfectly  well 
understood,  and  in  the  promotion  of  which  courts  may 
well  employ  the  most  liberal  and  humane  rules  of  inter- 
pretation. This  object  is  to  assure  to  the  unfortunate 
debtor,  and  his  equahy  unfortunate  but  more  helpless 
family,  the  shelter  and  the  influence  of  home.  A 
co-tenant  may  lawfully  occupy  every  parcel  of  the 
lands  of  the  co-tenancy.  He  may  employ  them,  not 
merely  for  cultivation,  or  for  other  means  of  making 
profits,  but  may  also  build  houses  and  barns,  plant 
shrubs  and  flowers,  and  surround  himself  with  all  the 
comforts  of  home.  His  wife  and  children  may  of 
right  occupy  and  enjoy  the  premises  with  him.  Upon 
the  land  of  which  he  is  but  a  part  owner,  he  may,  and 
in  fact  he  frequently  does,  obtain  all  the  advantages  of 
a  home.  These  advantages  are  none  the  less  worthy 
of  being  secured  to  him  and  his  family  in  adversity 
because  the  other  co-tenants  are  entitled  to  equal  advan- 
tages in  the  same  home.  That  he  has  not  the  whole 
is  a  very  unsatisfactory  and  a  very  inhumane  reason 
for  depriving  him  of  that  which  he  has.  We  have 
remarked  with  pleasure  the  acquiescence  in  these  views 
evident  in  the  more  recent  decisions.  In  no  instance, 
so  far  as  we  are  aware,  in  which  the  question  has  been 
presented  within  the  last  fifteen  years,  have  the  court, 
unless  bound  by  some  previous  adjudication  in  the  same 
state,  declared  an  undivided  interest  in  lands  beyond 


747  HOMESTEAD  EXEMPTIONS.  §243 

the  protection  of  the  homestead  laws.^     We  exclude 
from  this  assertion  partnership  lands.     By  partnership 
lands  we  mean  lands  which,  in  addition  to  standing  in 
the  names  of  two  or  more  persons  who  happen  to  be 
partners,  have  been  so  acquired  and  held  that,  at  least 
in  equity,  they  have  the  incidents  of  partnership  prop- 
erty, and  must,  when  necessary  in  the   liquidation  of 
partnership  debts  or  accounts,  be  treated  as  personalty. 
Such  lands  are  subject  to  the  joint  obligations  of  their 
owners,  and  each  has  the  right  to  insist  on  their  appli- 
cation, in  case  of  necessity,  to  the  satisfaction  of  the 
firm  debts;  and  finally,  neither  partner  has  any  certain 
definite  interest  therein,  but  only  a  share  in  such  sur- 
plus as  may  remain  after  the  payment  of  the  partner- 
ship obligations.     If  either  partner  were  permitted  to 
dedicate  any  portion  of  these  lands  as  a  homestead,  he 
could  thus  indirectly  withdraw  from  the  firm  a  portion 
of  its  capital  in  defiance  of  the  partnership  articles,  and 
often  to  the  great  prejudice  of  his  co-partners  and  the 
creditors  of  the  firm.     Therefore  whatever  may  be  his 
rights  as  against  his  individual  creditors,  we  think  it 
must  ultimately  be  conceded  that  neither  partner  can 
successfully  claim  as  a  homestead  any  part  of  the  firm 
realty,  as  against  his  co-partners,  nor  to  the  prejudice  of 

the  creditors  of  the  firm.^ 
y 

1  Clements  v.  Lacy,  51  Tex.  162;  Brown  v.  McLennan,  60  Tex.  43;  Hewett 
V.  Rankin,  41  Iowa,  35;  In  re  Swearinger,  5  Saw.  52;  17  Nat.  Bank.  Reg.  134; 
McGrath  v.  Sinclair,  55  Miss.  89;  Sherrid  v.  Southwick,  43  Mich.  515;  Kasor 
V.  Haas,  27  Minn.  406;  Lozo  v.  Southerland,  38  Mich.  168;  Ward  v.  Mayfield, 
41  Ark.  94;  Danforth  v.  Beathe,  43  Vt.  138;  McGune  v.  Van  Pelt,  55  ^la.  344; 
Snedecor  v.  Freeman,  71  Ala.  140. 

2  In  re  Smith,  2  Hughes,  307;  0.  &  S.  Bank  v.  Corbett,  5  Saw.  543; 
Terry  v.  Berry,  13  Nev.  514;  Smith  v.  Chenault,  48  Tex.  455;  Drake  v. 
Moore,  66  Iowa,  58;  Hoyt  v.  Hoyt,  69  Iowa,  174;  Trowbridge  v.  Cross,  117 
111.  109. 


§244  HOMESTEAD  EXEMPTTONS.  748 

^  244.  The  Use  of  the  Homestead  for  Business  and 
Rental  Purposes.  —  The  actual  Jioine  ot"  the  debtor 
—  the  }ilaeo  wliere  he  and  bis  family  reside  —  must  be 
conceded  to  be  exempt  wherever  homestead  laws  pre- 
vail, and  tbe  claimant  has  complied  with  their  require- 
ments/ Premises  claimed  as  exempt,  and  undisputably 
occupied  by  the  debtor  and  his  family  as  their  home, 
may  also  be  occupied  for  other  purposes.  These  ques- 
tions then  arise:  Does  the  occupation  for  other  pur- 
poses make  the  premises  any  less  a  homestead?  Does  it 
forfeit  the  homestead  claim,  either  in  whole  or  in  parti 
In  Khodes  v.  McCormick,  4  Iowa,  3G8,  G8  Am.  Dec. 
663,  part  of  a  building  was  occupied  by  the  claimant's 
family.  Those  parts  not  necessary  for  the  family  were 
occupied  for  other  than  homestead  purposes.  The 
court  determined  that  the  homestead  character  and 
exemption  must  be  confined  to  the  rooms  used  by  the 
family;  that  part  of  the  building  was  homestead  and 
part  was  not.^  This  decision  has  not,  so  far  as  we  are 
aware,  ever  been  overruled.^  In  fact,  it  has  quite  re- 
cently been  recognized  as  a  controlling  authority.^  It  is, 
however,  opposed  by  so  many  adverse  adjudications  in 
other  parts  of  the  Union  that  its  force  as  authority 
must  be  limited  to  the  state  wherein  it  was  made. 
Nothing  is  more  common  than  to  use  the  homestead 
for  business  purposes.     Spare  rooms  may  be  rented 

>  Tumlinson  v.  Swinney,  22  Ark.  400;  7G  Am.  Dec.  432;  Cook  v.  McChria- 
tian,  4  Cal.  23;  Taylor  v.  Hargous,  4  Cal.  268;  60  Am.  Dec.  606;  McDonald  v. 
Badger,  23  Cal.  393. 

»  Rhodes  r.  McCormick,  4  Iowa,  368;  68  Am.  Dec.  663. 

'  lu  Wright  V.  Ditzler,  54  Iowa,  026,  Rhodes  v.  McCormick,  68  Am.  Dec. 
663,  is  referred  to  as  a  case  wherein  the  referees  reported  that  tlie  parts  of  the 
house  declared  not  to  be  exempt  were  originally  designed  for  a  business  house, 
and  the  case  was  therefore  held  not  to  forbid  the  use  as  a  store  of  part  of  a 
building  intended  originally  for  family  use. 

♦  Maylield  v.  Maasden,  59  Iowa,  517. 


749  HOMESTEAD  EXEMPTIONS.  §244 

to  lodgers.  The  claimants  may  carry  on  the  business 
of  keeping  a  hotel  or  lodging-house.  They  may  live 
upstairs  and  have  storerooms  underneath  rented  out 
to  tenants.  In  all  these  cases  the  fact  that  part  of 
the  building  was  used  for  business  purposes  has  never, 
except  in  Iowa,  been  regarded  as  a  waiver  of  the  home- 
stead exemption  as  to  the  part  so  used.^  In  Wis- 
consin the  claimant  lived  in  the  fourth  story  of  his 
buildinof,  and  rented  the  three  lower  stories  to  tenants. 
The  entire  building  was  adjudged  exempt.^  In  Kan- 
sas a  building  designed  both  for  a  brewery  and  for  a 
family  residence  was  also  regarded  as  entirely  exempt.' 
In  Iowa,  a  single  building  claimed  as  a  homestead,  and 
occupied  partly  as  a  residence  and  partly  for  business 
purposes,  will  undoubtedly  be  divided,  if  possible,  so  as 
to  assign  to  the  debtor  the  rooms  and  parts  occupied 
as  his  home,  and  to  permit  the  sale  of  the  residue  under 
execution.*  So  far  as  we  have  observed,  this  course 
has  not  been  pursued  in  other  states.  Generally  the 
courts  have  considered  all  the  uses  and  purposes  for 
which  the  building  has  been  constructed  and  used.  If, 
upon  the  whole,  it  appeared  that  the  chief  use  or  pur- 
pose of  the  building  was  that  of  a  homestead,  they 
have  not  condemned  the  whole  nor  any  part  to  forced 
sale  because  some  of  the  rooms  or  parts  have  been 
rented  out  or  used  for  business  purposes ;  ^  and  if,  on  the 

'  Orr  V.  Shraft,  22  Mich.  260;  Gregg  v.  Bostwick,  33  Cal.  220;  91  Am.  Dec. 
637;  Moore  v.  Whitis,  .SO  Tex.  440.  For  exemption  of  hotels  and  lodging- 
houses,  see  Goldman  v.  Clark,  1  Nev.  607;  Mercier  v.  Chace,  11  Allen,  194; 
Lazell  »'.  Lazell,  8  Allen,  575;  Ackley  v.  Chamberlain,  16  Cal.  181;  ^76  Am. 
Dec.  516. 

»  rhelps  V.  Rooney,  9  Wis.  70;  76  Am.  Dec.  244. 

3  In  re  Tertelling,  2  Dill.  339;  Klcnk  v.  Knoblu,  37  Ark.  298. 

♦  May  field  V.  Maasden,  59  Iowa,  517. 

*  Klenk  v.  Knoble,  37  Ark.  298;  llogan  v.  Manners,  23  Kan.  551;  33  Am. 
Rep.  199. 


§244  HOMESTEAD  EXEMPTIONS.  750 

other  hand,  the  primary  use  of  the  building  is  for  busi- 
ness purposes,  they  have  held  it  subject  to  execution, 
though  occupied  b}--  the  debtor  and  his  family  as  their 
home.  The  use  of  a  residence  for  hotel  purposes  will 
not  forfeit  the  debtor's  claim  to  hold  it  exempt  as  his 
homestead;^  and  the  use  of  a  hotel  for  residence  pur- 
poses will  not  enable  the  owner  to  maintain  a  claim  for 
its  exemption  as  his  homestead.^ 

In  the  cases  to  which  we  have  referred,  the  property 
claimed  as  a  homestead,  though  in  part  used  for  other 
purposes,  did  not  contain  dwellings  or  places  of  busi- 
ness distinct  and  separate  from  the  building  occupied 
by  the  family.  The  premises  claimed  as  a  homestead 
may  contain  two  or  more  buildings,  or  they  may  have 
one  dwelling  occupied  by  the  family,  and  one  or  more 
distinct  structures  rented  out  to  tenants  for  stores, 
offices,  or  other  purposes.  In  some  of  the  states  it  is 
immaterial  how  man}^  structures  are  on  the  homestead 
lot,  or  to  what  uses  it  is  put,  provided  always  that  it, 
or  some  part  of  it,  is  occupied  as  a  homestead,  and 
that,  with  all  its  improvements,  it  does  not  exceed  in 
value  the  limit  prescribed  by  statute.^  In  other  states, 
buildings  distinct  from  the  family  residence,  and  rented 
out,  are  not  exempt  as  part  of  the  homestead.*  In 
Michigan,  a  double  house,  showing  by  its  structure 
that  it  was  originally  intended  for  two  families,  and  in 
fact  occupied  one  half  by  the  claimant,  and  the  other 
half  by  his  tenajit,  was  held  to  be  a  homestead  only  so 

*  Harriman  v.  Queea  Ins.  Co.,  49  Wis.  84. 
^  Laughlin  v.  Wright,  63  Cal.  116. 

3  Kirtlancl  v.  Davis,  43  Ga.  318;  Hubbell  v.  Canady,  58  111.  425;  Kelley  v. 
Baker,  10  Minn.  154;  Hancock  v.  Morgan,  17  Tex.  582;  Umland  v.  Holcombe,  26 
Minn.  286;  Stevens  v.  HoUingsworth,  74  111.  203;  Smith  v.  Stewart,  13  Nev.  65. 

*  Casselman  r.  Packard,  16  Wis.  115;  82  Am.  Dec.  710;  Hoitt  v.  Webb,  36 
N.  H.  158;  Kurz  v.  Brusch,  13  Iowa,  371;  81  Am.  Dec.  435, 


751 


HOMESTEAD  EXEMPTIONS.  §^44 


far  as  occupied  b}^  its  owner.^     The  sole  object  of  the 
homestead  laws  is  the  securing  to  the  families  of  unfor- 
tunate debtors  the  shelter  of  their  homes,  and  to  give 
them  assurance  that  this  much  is  beyond  the  reach  of 
the  law.     The  policy  of  these  laws  does  not  go  beyond 
this.     It  does  not  embrace  the  withdrawal  from  execu- 
tion of  property  not  needed  nor  used  by  the  family  as 
a  part  of  the  home.     If  these  laws  are  to  be  inter- 
preted with   reference  to  the  well-known   purpose   of 
their  enactment,  we  think  they  must,   except  where 
they  are  clearly  of  a  different  purport,  be  confined  in 
their  operation  to  that  portion  of  the  premises  claimed 
which  constitutes  the  claimant's  home,  and  so  as  not 
to  embrace  buildings  separated  from  the  family  resi- 
dence and  rented  out  to  tenants.^     If  the  premises  are 
not  used  as  a  home  at  all,  as  where  they  are  used 
solely  as  a  mill,  a  shop,  or  an  office,  no  part  of  them  is 
exempt  as  a  homestead,  because  no  part  is  a  home- 
stead in  fact.^     If  there  are  several  distinct  tenements, 
whether  united  into  one  structure  or  not,  one  tenement 
may  be  used  as  the  home  of  the  debtor,  while  the 
others   may  be  used  for  rental  or  business  purposes. 
In  such  cases  the  former  is  clearly  exempt,  because  it 
is  the  homestead  in  fact,  and  the  latter  are  as  certainly 
not  exempt,  for  they  are  no  more  a  part  of  the  home- 
stead in  fact  than  if  they  were  situate  in  remote  parts 
of  the  same  town.*     But  the  premises,  when  dedicated 

1  Dyson  v.  Sheley,  11  Mich.  527. 

2  Johnson  v.  Moser,  66  Iowa,  536. 

»  Crow  V.  Whitworth,  20  Ga.  38;  Greeley  v.  Scott,  2  Woods,  657;  True  v. 
Morrill,  28  Vt.  672;  Stanley  v.  Greenwood,  24  Tex.  224;  76  Am.  Dec.  106. 

♦  Raster  v.  McWiUiams,  41  Ala.  302;  McConnaughly  v.  Baxter,  55  Ala. 
379;  Wade  v.  Wade,  9  Baxt.  612;  Schoffen  v.  Landauer,  60  Wis.  337;  Tier- 
nan  v.  Creditors,  62  Cal.  286;  Ashton  v.  Ingle,  20  Kan.  670;  27  Am.  Rep.  197; 
Geney  i'.  Mayuard,  44  Mich.  578. 


§245  HOMESTEAD  EXEMPTIONS.  752 

as  a  bonicstcad,  may  bo  in  the  exclusive  occupancy  of 
the  faniil}'.  If  so,  tlie  homestead  estate  at  once 
attaches  to  the  whole  property.  In  this  estate,  the 
wife  is,  under  many  of  the  statutes,  a  joint  tenant  with 
her  husband,  or  is  at  least  so  interested  in  the  preser- 
vation of  the  whole  of  the  premises  as  a  homestead, 
that  they  cannot  be  alienated,  devised,  nor  encumbered 
without  her  assent.  She  has  no  power  to  prevent  her 
husband  from  erecting  other  dwellings,  or  making 
other  improvements,  nor  from  renting  the  new  erec- 
tions to  tenants.  If  the  new  erections  and  their  occu- 
pancy by  tenants  have  the  effect  of  contracting  the 
homestead  estate  so  that  it  shall  not  embrace  the  lands 
on  which  they  stand,  then  the  estate  of  the  wife  is 
impaired  and  partially  terminated  without  her  assent. 
Hence  it  has  been  held  that  the  erection  and  renting 
of  a  house  on  lands  previously  dedicated  as  a  home- 
stead cannot  occasion  any  decrease  in  the  limits  of  the 
exempt  premises/ 

§  245.      The    Homestead   Appurtenances.  —  The 

homestead  is  not  limited  to  the  dwelling-house.  ''The 
word  'homestead'  is  used  in  its  ordinary  or  popu- 
lar sense, — or  in  other  words,  its  legal  sense  is  also 
its  popular  sense.  It  represents  the  dwelling-house  at 
which  the  family  resides,  with  the  usual  and  customary 
appurtenances,  including  out-buildings  of  every  kind 
necessary  or  convenient  for  family  use,  and  lands  used 
for  the  purposes  thereof."  ^  It  includes  barns,  stables, 
smoke-houses,  and   no  doubt  all    other    out-buildings 

*  Hancock  v.  Morgan,  17  Tex.  582.  For  a  discussion  of  the  character  and 
uses  of  the  jiremises  which  may  successfully  be  claimed  as  a  homestead,  see 
Greeley  v.  Scott,  2  Cent.  L.  J.  301,  and  note  thereto. 

«  Gregg  V.  Bostwick,  33  Cal.  227;  91  Am.  Dec.  637;  Moore  v.  Whitis,  30 
Tex.  440. 


753  HOMESTEAD  EXEMPTIONS.  §246 

erected  for  family  use.^  The  claimant  may  exercise 
some  trade  or  profession  requiring  him  to  keep  a  shop 
or  office.  This  shop  or  office  may  be  erected  on  the 
homestead  premises,  and  if  so  erected,  seems  to  be 
regarded  as  appurtenant  to  the  homestead,  and  as  ex- 
empt from  execution.^  In  Xevada,  a  livery  stable 
erected  on  a  portion  of  the  homestead  lot  was  adjudged 
to  be  exempt  as  a  part  of  the  homestead.^  In  Wis- 
consin, laths,  lumber,  shingles,  and  other  material  pro- 
cured for  the  purpose  of  repairing  the  homestead 
dwelling,  and  actually  deposited  upon  the  homestead 
premises,  are  exempt  from  execution.^  A  lot  Ij'ing 
adjacent  to  that  on  which  the  dwelling-house  of  the 
debtor  is  situate,  and  used  by  him  and  his  family  as 
an  approach  to  the  dwelling-house  lot,  and  for  various 
domestic  purposes,  may  be  exempt  as  part  of  the 
homesiead.'^  In  Florida,  a  mill  adjacent  to  the  resi- 
dence of  the  mill-owner  may  be  a  part  of  his  home- 
stead.^ But  generally,  neither  a  mill  nor  any  other 
business  structure  can  be  exempt  as  appurtenant  to  a 
homestead.^ 

§  246.  The  Amount  of  Property  Which  may  be 
Held  as  a  Homestead   is  prescribed   b}^  the  statutes 

1  Ackleyi>.  Chamberlain,  16  Cal.  181;  76  Am.  Dec.  516;  Kurz  w.  Brusch,  13 
Iowa,  371;  81  Am.  Dec.  435;  Reinback  v.  Walter,  27  111.  393;  Greeley  v.  Scott, 
2  Cent.  L.  .J.  361;  Wright  r.  Ditzler,  54  Iowa,  620. 

*  Pryor  v.  Stone,  19  Tex.  371;  70  Am.  Dec.  341;  Stanley  r.  Grecnwooel,  24 
Tex.  224;  76  Am.  Dec.  106;  Stevens  v.  Hollingsworth,  7  Chic.  L.  N.  198;  West 
River  Bank  v.  Cale,  42  Vt.  27. 

'  Clark  V.  Shannon,  1  Nev.  568. 

*  Krueger  v.  Pierce,  37  Wis.  269;  Scofield  v.  Hopkins,  61  Wis.  370;  In 
Georgia,  the  produce,  rents,  and  profits  of  a  homestead  are  also  exempt.  But 
this  exemption  does  not  include  the  rent  of  a  house  disconnected  from  the 
homestead.     Huff  v.  Bournell,  48  Ga.  338. 

*  Ea}<lebrecht  v.  Shade,  47  Cal.  627;  Arto  v.  Maydole,  64  Tex.  244. 
6  Greeley  r.  Scott,  2  Woods,  657. 

'  Mouriquand  v.  Hart,  22  Kan.  594;  31  Am.  Rep.  200. 
Vol.  I.  -  48 


§247  HOMESTEAD  EXEMPTIONS.  754 

of  each  state  in  which  the  homestead  exemption  is 
known.  The  Umit  is  sometimes  kept  within  a  speci- 
fied area,  and  sometimes  within  a  specified  value.  In 
villages  and  cities  the  area  is  usually  small;  in  the 
country  it  is  necessarily  extended  so  as  to  embrace 
lands  enousrh  to  make  at  least  a  small  farm.  The 
more  usual  course  is  to  leave  the  area  indefinite,  but  to 
limit  the  value.  Where  this  course  is  pursued,  the 
premises,  though  of  little  value  when  dedicated  as  a 
homestead,  may  by  fluctuation  in  prices,  or  b}^  subse- 
quent improvement,  pass  beyond  the  statutory  limit. 
In  this  event  the  excess  becomes  liable  to  execution.' 
The  whole  premises  may  be  sold,  and  the  debtor,  after 
paying  to  the  defendant  the  amount  of  the  exemption 
pi'cscribed  by  statute,  may  apply  the  balance  of  the 
proceeds  to  the  satisfaction  of  his  writ ;  or  the  premises, 
if  susceptible  of  such  a  partition,  may  be  so  divided  as 
to  allow  the  defendent  to  retain  a  homestead  equal  in 
value  to  the  limit  fixed  by  statute,  and  to  permit  the 
creditor  to  levy  on  the  residue.^ 

§  247.  In  Several  of  the  States,  Two  Distinct 
Parcels  of  Land  may  be  held  as  one  homestead.  In 
these  states  the  test  of  use  is  applied.  Whenever  it 
appears  that  both  tracts,  taken  as  an  aggregate,  are 
emploj^ed  for  homestead  purposes,  and  do  not  exceed 
in  value  the  amount  prescribed  by  statute,  they  are 
both  exempt.^     In  speaking  of  distinct  parcels  of  land, 

1  Stuhblefijld  V.  Graves,  50  111.  103;  Gregg  v.  Boatwick,  33  Cal.  227;  91 
Am.  Dec.  037. 

2  Morgan  *;.  Stearns,  41  Vt.  398;  McDonald  v.  Crandall,  43  111.  231;  92  Am. 
Dec.  112;  Hume  r.  Gossett,  43  111.  297;  Fogg  v.  Fogg,  40  N.  H.  282;  77  Am. 
Dec.  715;  Pittsfield  Bank  v.  Ho%vk,  4  Allen,  347;  Maxey  v.  Loyal,  38  Ga.  531. 

»Pryor  r.  Stone,  17  Tex.  371;  70  Am.  Dec.  .341;  Ilagland  t'.  Rogers,  34 
Tex.  617;  Martin  v.  Hughes,  67  N.  C.  293;  Mayho  v.  Cotton,  69  N.  C.  289; 


755  HOMESTEAD  EXEMPTIONS.  §247 

we  do  not  mean  lands  divided  by  imaginary  lines,  nor 
by  streets,  highways,  or  watercourses;  we  mean  tracts 
or  lots  separated  from  each  other  by  the  lands  of  other 
proprietors/  Thus  in  New  Hampshire,  a  tract  of 
land  a  mile  distant  from  the  tract  on  which  the  claim- 
ant resided,  and  which  he  used  as  a  pasture  for  his 
cows,  was  adjudged  to  be  a  part  of  the  homestead.^ 
But  where  the  same  person  claims  two  parcels  as 
exempt,  however  near  they  may  be  to  each  other,  he 
must  show  clearly  that  the  tract  on  which  he  does  not 
personally  reside  is  used  as  a  part  of  the  homestead.^ 
In  the  majority  of  the  states  where  the  question  is 
not  controlled  by  statute,  the  lands  claimed  as  a  home- 
stead must  be  contiguous.  They  must  not  be  sepa- 
rated by  the  lands  of  another  proprietor.*  Lands  on 
opposite  sides  of  a  street  or  other  public  highway 
must  be  regarded  as  contiguous.^  They  are  only 
severed  by  a  mere  easement.  The  lands  in  the  road 
belong  to  the  adjacent  owners.  In  Kansas  the  rule 
is  otherwise.  The  streets  there  belong  to  the  state. 
Hence  lands  separated  by  a  street  have  between  them 
the  lands  of  another  proprietor,  and  cannot  be  held  as 

Melton  V.  Andrews,  45  Ala.  454;  Reynolds  v.  Hull,  3G  Iowa,  394;  Iken  v. 
Olenick,  42  Tex.  195;  Bothell  v.  Sweet,  6  Atl.  Rep.  64G;  Perkins  v.  Quigly,  62 
Mo.  498. 

'  Thus  in  Arkansas,  where  the  statute  provides  for  the  exemption  of  "one 
town  or  city  lot,  being  the  residence  of  a  householder  or  the  head  of  a  family," 
it  was  lield  that  the  claimant  was  not  restricted  to  one  lot  according  to  a  city 
map,  hut  might  hold  two  or  more  lots  embraced  in  a  common  inclosure,  and 
all  used  as  a  single  lot  for  homestead  purposes.  Wassell  v.  Tunnah,  25  Ark. 
101. 

»  Buxton  V.  Dearborn,  40  N.  H.  43. 

'  Methcry  v.  Walker,  17  Tex.  593. 

«  Hornby  v.  Sikcs,  50  Wis.  .382;  Walters  v.  People,  18  111.  184;  65  Am. 
Dec.  730;  Adams  v.  Jenkins,  10  Gray,  140;  Bunker  v.  Locke,  15  Wis.  635; 
True  V.  Morrill,  28  Vt.  672;  Kreslin  v.  Mau,  15  Minn.  UG;  Randal  v.  Elder, 
12  Kan.  257;  Mills  v.  Grant,  36  Vt.  269. 

'■  Bunker  v.  Locke,  15  Wis.  635;  West  River  Bank  v.  Gale,  42  Vt.  27 


§247  a  HOMESTEAD  EXEMPTIONS.  756 

one  homestead/  In  Illinois  and  Minnesota  a  home- 
stead can  consist  of  but  one  tract  or  lot  of  land.- 
Land  divided  by  imaginary  lines,  but  in  fact  con- 
tained within  a  single  inclosure,  constitutes  but  one 
tract,  within  the  meaning  of  this  rule.^  In  California, 
the  supreme  court,  in  attempting  to  describe  a  statutory 
homestead,  said:  **It  represents  the  dwelling-house  at 
which  the  family  resides,  with  the  usual  and  custom- 
ary appurtenances,  including  out-buildings  of  every 
kind  necessary  or  convenient  for  family  use,  and  lands 
used  for  the  purposes  thereof.  If  situated  in  the 
country,  it  may  include  a  garden  or  farm.  If  situated 
in  a  city  or  town,  it  may  include  one  or  more  lots,  or 
one  or  more  blocks.  In  either  case  it  is  unlimited  by 
extent  merely.  It  need  not  be  in  a  compact  body; 
on  the  contrary,  it  may  be  intersected  by  highways, 
streets,  or  alleys."* 

§  247  a.    Produce  and  Proceeds  of  Homestead.  — 

The  exemption  of  homesteads  in  property  used  for 
ao'riculture  is  of  but  little  benefit  to  the  claimant,  if  it 
does  not  include  the  crops  produced  thereon.  His 
occupation  of  the  homestead  in  such  cases  is  for  the 
purpose  of  realizing  therefrom  something  to  support 
himself  and  family,  rather  than  to  employ  it  as  a  mere 
place  wherein  to  shelter  him  and  them  from  the  win- 
ter's cold  or  the  summer's  heat.  As  well  might  the 
exemption  of  a  debtor's  only  cow  be  held  not  to  protect 
from  execution  the  milk  given  by  her,  or  the  butter 

1  Randal  v.  Elder,  12  Kan.  257. 

2  Kreslin  v.  Mau,  15  Minn.  116;  Walters  v.  People,  18  III.  194;  21  III.  178; 
65  Am.  Dec.  730. 

3  Thornton  v.  Boyden,  31  111.  200. 

*  Gregg  V.  Bostwick,  33  Cal.  227;  91  Am.  Dec.  637;  Estate  of  Delaney,  37 
Cal.  179. 


757  HOMESTEAD  EXEMPTIONS.  §248 

manufactured  out  of  it,  as  the  exemption  of  a  rural 
homestead  be  held  not  to  entitle  the  claimant  to  retain 
from  forced  sale  any  of  the  crops  raised  by  him  thereon. 
The  decisions  upon  this  subject,  though  strangely 
infrequent,  preponderate  toward  the  views  here  ex- 
pressed, and  hold  such  crops  to  be  embraced  within 
the  exemption/  If  the  homestead  or  any  part  of  it 
is  converted  into  money  or  other  personalty  without 
the  assent  of  the  claimants,  this  involuntary  conversion 
does  not  imperil  their  right  of  exemption.  Hence  if 
the  improvements  thereon  are  insured  against  loss  by 
fire,  the  moneys  falling  due  by  reason  of  their  loss  from 
the  peril  insured  against  cannot  be  garnished."  The 
same  rule  applies  to  moneys  awarded  for  a  right  of  way 
over  the  hometead,^  and  to  a  claim  for  damages  result- 
ing from  the  destruction  of  improvements  on  the  home- 
stead through  negligence  whereby  they  were  destroyed 
by  fire.^  In  the  absence  of  a  statute  protecting  from 
execution  the  proceeds  of  the  voluntary  sale  of  a  home- 
stead, they  are  doubtless  not  exempt.^  In  some  of  the 
states,  however,  if  a  debtor  sells  his  homestead,  and 
retains  the  proceeds  for  the  purpose  of  procuring  an- 
other, they  continue  exempt  during  the  continuance 
of  such  purpose.^ 

§  248.     Abandonment    of    the    Homestead.  —  In 

some  of  the  states  the  abandonment  of  a  homestead, 
like  its  selection,  must  be  by  some  instrument  executed 

*  Alexander  v.  Holt,  59  Tex.  205;  Marshall  v.  Cook,  46  Ga.  301;  contra, 
Horgau  v.  Amick,  02  Cal.  401. 

■■*  Houghton  V.  Lee,  50  Cal.  101;  Cooney  v.  Cooney,  65  Barb.  524;  Cameron 
V.  Fay,  55  Tex.  58. 

'  Kaiser  v.  Seaton,  62  Iowa,  463. 

*  Mudgc  V.  Launing,  68  Iowa,  641. 
0  Ante,  §2:}5. 

"  Huskiua  v.  Haulon,  72  Iowa,  37;  Biozel  v.  Grogan,  67  Wis.  147. 


§248  HOMESTEAD  EXEMPTIONS.  758 

as  designated  by  statute,  and  filed  for  record.  In 
others,  the  abandonment  need  not  be  attested  by  any 
written  declaration,  but  may  be  inferred  from  the  acts 
of  the  claimants.  In  many  of  the  states  the  wife  need 
not  be  consulted  with  respect  to  the  abandonment  of 
the  homestead.  The  husband,  as  the  head  of  the 
family,  has  the  right  to  determine  its  place  of  residence, 
and  may  therefore  abandon  the  homestead  without  the 
concurrence  of  his  wife.^  Even  where  this  is  the  law, 
the  desertion  by  a  husband  of  his  family,  leaving  them 
in  the  occupancy  of  the  homestead,  is  not  an  abandon- 
ment. The  presumption  is  that  he  "  continues  a  wan- 
derer, without  a  home,  until  he  returns  to  his  duty  and 
his  family."  ^  Abandonment  generally  requires  a  union 
of  act  and  intent.  Possibly  there  may  be  acts  suffi- 
cient to  constitute  an  abandonment,  where  there  is  no 
intent  to  abandon ;  but  there  can  be  no  intent  to  aban- 
don which  is  adequate  to  work  an  abandonment  in 
advance  of  some  act  toward  carrying  the  intent  into 
execution.^  Removal  from  the  homestead,  coupled 
with  an  intention  not  to  return,  operates  at  once  as  an 
abandonment  thereof;  *  and  declarations  made  by  the 
claimant  at  or  before  such  removal  are  admissible  to 
show  the  intent  with  which  it  was  made.^  Where  the 
wife  has  an  interest  in  the  homestead,  and  a  right  to 

1  Brown  v.  Coon,  36  111.  243;  85  Am.  Dec.  402;  Titman  v.  Moore,  43  111. 
109;  Hand  v.  Winn,  52  Miss.  784. 

'  Moore  v.  Dunning,  29  111.  130;  81  Am.  Dec.  301:  Gary  v.  Tice,  6  Cal.  625; 
White  V.  Clark,  36  111.  285;  Blandy  v.  Aslier,  72  Mo.  35;  Locke  v.  Rowell,  47 
N.  H.  46. 

*  Dunn  V.  Tozer,  10  Cal.  107;  Dawley  v.  Ayers,  23  Cal.  108;  Cross  v.  Everts, 
28  Tex.  523. 

*  FyfFe  v.  Beers,  18  Iowa,  4;  85  Am.  Dec.  577;  Dunton  v.  Woodbury,  24 
Iowa,  76;  Cline  v.  Ujiton,  56  Tex.  319. 

^  Brennan  v.  Wallace,  25  Cal.  108;  Wright  ?-.  Dunning,  46  111.  271;  92  Am. 
Dec.  257;  McMillan  v.  Warner,  38  Tex.  410;  Jarvais  v.  Moe,  .38  Wis.  440; 
Anderson  v.  Kent,  14  Kan.  207;  HoUiman  v.  Smith,  39  Tex.  357. 


759  HOMESTEAD  EXEMPTIONS.  §248 

insist  on  its  continuance,  it  is  difficult  to  say  what  acts 
will  be  sufficient,  as  against  her,  to  establish  the  aban- 
donment of  her  homestead.  She  is  obliged  by  law  to 
accompany  her  husband.  She  cannot  refuse  to  leave 
her  home  and  accompany  him  to  a  new  domicile  of  his 
selection,  without  violating^  her  marital  obliofations, 
parting  with  the  company  of  her  children,  and  giving 
sufficient  cause  for  an  action  of  divorce  on  the  ground 
of  desertion.  Hence  her  removal,  after  a  sale  of  the 
homestead  by  the  husband  alone,  has  been  said  not  to 
present  a  case  of  abandonment,  but  to  be  the  very  con- 
tingency against  which  the  statute  was  designed  to 
protect  her.^  Under  such  a  statute  it  is  evident 
that  no  acts  can  amount  to  an  abandonment,  unless 
done  by  the  concurrence  of  both  husband  and  wife.^ 
The  acts  relied  upon  most  frequently  as  evidence  of 
abandonment  are,  either  the  acquisition  of  a  new  home- 
stead, or  the  mere  departure  from  the  old  homestead 
without  acquiring  a  new  one.  Whether  an  abandon- 
ment has  taken  place  is  a  question  of  fact,  to  be  deter- 
mined by  a  jury,  or  by  a  court  acting  instead  of  a  jury.^ 
In  most  of  the  states,  leavinsf  the  old  homestead  and 
acquiring  a  new  one  is  regarded  as  conclusive  evidence 
of  abandonment  of  the  former,  because  the  claimants 
cannot,  at  the  same  time,  have  two  separate  homes.* 
Where,  however,  no  new  homestead  has  been  secured, 
but  the  claimants  have  absented  themselves  from  the 

^  Taylor  v.  Hargous,  4  Cal.  2(J8;  GO  Am.  Dec.  606;  Dorsey  /;.  McFarlaiul, 
7  Cal.  342.     Sou  Wood  v.  Lor.l,  ol  N.  H.  448. 

■i  Estate  of  Tompkins,  12  Cal.  114. 

3  Brcauau  v.  Wallace,  25  Cal.  1 10. 

*  Tlioms  V.  Thorns,  45  Miss.  263;  Hora  v.  Tufts,  39  N.  H.  478;  Titmaii  v. 
Moore,  43  111.  170;  Wood  c.  Lord,  51  N.  II.  448;  Buck  v.  Conlogue,  40  111.  394; 
Trawick  v.  Harris,  8  Tex.  312;  Howe  v.  Adams,  28  Vt.  544;  Taylor  v.  Boul- 
ware,  17  Tex.  74;  07  Am.  Dec.  642;  Atchison  v.  Wheeler,  20  Kau.  625;  Don- 
aldson v.  Lamprey,  29  Minn.  18. 


§':4S  HOMESTEAD  EXEMPTIONS.  760 

old  one,  it  becomes  necessary  to  ascertain  whether 
their  absence  was  designed  to  be  permanent  or  tempo- 
rary. For  nothing  else  in  the  law  of  abandonment  is  so 
clearly  settled  as  that  the  claimants  may,  for  purposes  of 
health,  pleasure,  business,  safety,  or  for  any  cause  they 
ma}'-  deem  sufficient,  temporarily  remove  from  their 
homestead  without  forfeiting  their  homestead  rights.^ 
The  foet  that  the  claimants  had  removed  from  their 
homestead  has,  in  a  few  cases,  been  adjudged  to  give 
rise  to  the  presumption  that  their  removal  was  intended 
to  be  permanent,  and  to  throw  upon  them  the  onus  of 
showing  that  they  intended  to  return.^  But  the  opin- 
ion sustained  by  the  greater  number  of  the  reported 
cases  is,  that  when  a  new  homestead  has  not  been 
acquired,  the  absence  from  the  old  one,  unless  for  a 
considerable  period,  does  not  even  create  a  presump- 
tion of  its  abandonment.^  So  it  is  affirmed,  by  some 
cases,  that  removal  to  another  state  is  prima  facie 
evidence  of  abandonment.*  This  proposition  is  also 
denied.^  In  Massachusetts  it  is  held  that  the  removal 
from  a  homestead  cannot  operate  as  its  abandonment 

1  Taylor  v.  Hargous,  4  Cal.  268;  60  Am.  Dec.  606;  Moss  v.  Warner,  10  Cal. 
296;  Dulanty  v.  Piachon,  6  AUea,  510;  Drury  v.  Batchelder,  11  Gray,  214; 
Stewart  v.  Brand,  23  Iowa,  478;  Fyffe  v.  Beers,  18  Iowa,  4;  85  Am.  Dec.  577; 
Ouiod  V.  Guiod,  14  Cal.  506;  76  Am.  Dec.  440;  Dearing  v.  Thomas,  25  Ga. 
223;  Tumliiison  v.  Swinney,  22  Ark.  400;  76  Am.  Dec.  432;  Davis  v.  Kelley, 
14  Iowa,  523;  Herrick  v.  Graves,  16  Wis.  153;  Campl)ell  v.  Adair,  45  Miss. 
170;  Carringtoa  v.  Herrin,  4  Bush,  624;  Wetz  v.  Beard,  12  Ohio  St.  431; 
Austin  V.  Stanley,  46  N.  H.  51;  Boyle  v.  Shulman,  59  Ala.  566;  Lehman  v. 
Bryan,  Ala.  67  558;  Thomas  v.  Williams,  50  Tex.  269;  Hixon  v.  George,  18 
Kau.  253;  Lindsay  v.  Murphy,  76  Va.  428;  Griffin  v.  Sheley,  55  Iowa,  513; 
Phipps  V.  Heton,  12  Bush,  375. 

»  Titmau  v.  Moore,  43  111.  170;  Harper  v.  Forbes,  15  Cal.  202. 

»  Mills  V.  Vos  Buskirk,  32  Tex.  360;  Campbell  v.  Adair,  45  Miss.  170;  Rix 
V.  Capitol  Bank,  2  Dill.  369;  Ives  v.  Mills,  37  111.  73;  87  Am.  Dec.  238. 

*  Orman  r.  Orman,  26  Iowa,  361. 

»  Rix  V.  Capitol  Bank,  2  Dill.  369;  Ives  v.  Mills,  37  111.  73;  87  Am.  Dec. 
238. 


761  HOMESTEAD  EXEMPTIONS.  §248 

until  a  new  one  is  acquired.^  In  Texas,  in  order  to 
establish  the  abandonment  of  a  homestead)  it  is  not 
absolutely  essential  to  show  that  a  new  one  has  been 
obtained  and  dedicated;^  but  if  this  fact  is  not  shown, 
its  absence  can  be  supplied  only  by  evidence  of  the 
most  clear  and  unmistakable  character,  and  entirely 
inconsistent  with  the  theory  that  the  claimants  had 
any  intention  of  returning.^  Mere  absence  for  several 
years,  or  for  an  indefinite  period,  is  not  enough,  in 
this  state,  to  warrant  a  jury  in  inferring  an  aban- 
donment of  the  homestead/  The  question  in  each 
case  is :  Did  the  parties  intend,  at  the  time  of  their 
removal,  or  during  their  subsequent  absence,  to  per- 
manently relinquish  their  home?  In  order  to  deter- 
mine this  question,  their  declarations  and  conduct 
may  be  proved.^  Frequently,  however,  the  chief  tes- 
timony before  the  court  relates  to  the  residence  of  the 
claimants  away  from  their  home.  From  the  purpose, 
character,  and  duration  of  this  residence,  the  court  in- 
fers whether  the  intent  of  the  parties  was  to  remain 
from  their  homestead  permanently,  or  only  tempora- 
rily. The  mere  renting  of  the  homestead  for  a  year^ 
does  not  show  an  intent  to  abandon.  In  Cabeen  v. 
Mulligan,  37  111.  230,  87  Am.  Dec.  247,  removing  to 
another  state  and  residing  there  two  years  was  held 
to  be  an  abandonment,  regardless  of  what  the  claim- 
ant might  testify  regarding  his  intent  to  return.  In 
Dutton  V.  Woodbury,  24  Iowa,  74,  an  absence  of  three 

1  W(.o(ll)ury  V.  LucMy,  14  Allen,  1;  92  Am.  Dec.  238. 

*  Sliephnrd  v.  Caasiday,  20  Tex.  24;  70  Am,  Dec.  372;  McMillan  v.  Warner, 
38  Tex.  414;  Woolfork  r.  Rickets,  41  Tex.  358. 

*  Goulienant  v.  Cockrell,  20  Tex.  9G;  Cross  v.  Evarts,  28  Tex.  524. 

*  McMillan  V.  Warner.  38  Tex.  410;  Mills  v.  Vos  Buakirk,  32  Tex.  360. 
"  Brenuau  v.  Wallace,  2o  Cal.  110. 

«  Locke  V.  Howell,  47  N.  H.  46. 


§248 


HOMESTEAD  EXEMPTIONS. 


762 


3''ears,  attempts  to  sell,  and  expressions  of  a  desire  not 
to  return,  were  adjudged  to  be  sufficient  evidence  of 
an  abandonment.  Very  similar  circumstances  were, 
in  another  state,  thought  to  show  a  desire  to  sell, 
ratlier  than  an  intent  to  abandon.^  In  Vermont,  an 
abandonment  was  presumed  from  a  leasing  for  five 
years,  living  in  another  house,  and  endeavoring  to 
sell."  In  Wisconsin  it  was  presumed  merely  from 
renting  property  and  going  into  town  to  live,  the  re- 
moval not  being  shown  to  be  for  any  temporary  pur- 
pose.^ 

The  following  facts  and  circumstances  have  been 
held  sufficient  to  justify  the  finding  of  abandonment  of 
homestead  by  the  claimant,  to  wit :  Moving  from  the 
homestead  to  town  with  his  family,  intending  to  reside 
there  and  practice  law,  if  successful,  otherwise  to  re- 
turn ;  ^  removing  with  his  family  to  another  county,  re- 
siding there  for  several  years,  repeatedly  exercising  the 
right  of  suffrage  there,  and  offering  to  sell  the  home- 
stead;^ leaving  the  state  by  the  claimant  in  1875,  who 
was  followed  by  his  wife  in  1876,  though  she  left  part 
of  the  household  furniture  at  the  homestead;^  leaving 
the  homestead  by  the  claimant,  and  going  to  another 
state,  while  his  wife  went  to  live  with  her  father  in 
another  county,  while  the  claimant's  mother  remained 
on  the  homestead  and  rented  it  to  a  tenant  with 
whom  she  boarded;^  surrendering  the  homestead  to 
the  mortgagee  under  a  lease  renewable  annually  until 

1  Dunn  V.  Tozer,  10  Cal.  167. 

2  Davis  V.  Andrews,  30  Vt.  678.     See  alao  Cahill  v.  W^ilson,  62  111.  137. 
»  Phelau's  Estate,  16  Wis.  76. 

*  Kimball  ?;.  Wilson,  59  Iowa,  638. 

*  Cotton  V.  Hamil,  58  Iowa,  594. 

^  Leonard  v.  lugraha'ni,  58  Iowa,  406. 
^  Roach  V.  Hacker,  2  Lea,  C33. 


763  HOMESTEAD  EXEMPTIONS.  §248 

the  mortgage  debt  should  be  paid/  The  question  of 
abandonment  must  necessarily  be  decided  upon  the  facts 
of  ':;ach  particular  case.  The  intention  of  the  claimants 
must  be  determined  from  their  declarations  made  at 
the  time  of  the  removal  or  afterward,  as  well  as  from 
the  declarations  they  may  make  under  oath  when  at- 
tempting to  sustain  their  claim.  It  is  always  difficult 
to  state  general  rules  which  will  be  of  any  considerable 
utility  in  assistino-  the  determination  of  issues  of  fact. 
With  respect  to  the  issue  of  fact  arising  when  an 
abandonment  is  affirmed  on  one  side  and  denied  on  the 
other,  the  difficulty  of  framing  any  general  rule  is 
insurmountable.  This  is  because  the  decisions  in  the 
various  states  are  too  dissimilar  in  their  results  to 
warrant  the  inference  that  the  principles  of  law  gov- 
erning this  question  have  yet  attained  anything  like  a 
general  recognition  and  acquiescence.^  The  abandon- 
ment of  the  homestead  by  a  husband  cannot  prejudice 
the  claim  of  his  wife,  where  she  retains  possession.^ 

^  Benson  v.  Dow,  G5  111.  146. 

^  For  the  decisions  regarding  the  effect  of  absence  from  a  homestead  as  evi- 
dence of  abandonment,  sec  Wiggins  v.  Chance,  54  111.  175;  Walters  v.  People, 
21  111.  178;  Cipperly  v.  Rhodes,  53  111.  346;  Fergus  v.  Woodworth,  44  111.  377; 
Ives  V.  Mills,  37  111.  73;  87  Am.  Dec.  238;  Brinkerhoff  v.  Everett,  38  111.  263; 
McMillan  v.  Warner,  38  Tex.  410;  Gouhenant  v.  Cockrell,  20  Tex.  96;  Pitman 
V.  Moore,  43  111.  170;  Vasey  v.  Trustees,  59  111.  188;  Locke  v.  Rowell,  47 
N.  H.  46;  Wood  v.  Lord,  51  N.  H.  448;  Moss  v.  Warner,  lO  Cal.  296;  Harper  v. 
Forbes,  15  Cal.  202;  Breunan  v.  Wallace,  25  Cal.  110;  Dulanty  v.  Pinchon,  6 
Allen,  510;  Campbell  v.  Adair,  45  Miss.  170;  Brettum  v.  Fo.x,  100  Mass.  2.34; 
Cox  V.  Shropshire,  25  Tex.  113;  Dorsey  v.  McFarland,  7  Cal.  342;  Dcaring  v. 
Thomas,  25  Ga.  223;  Wright  v.  Dunning,  46  111.  271;  92  Am.  Dec.  257;  Gainea 
V.  Casey,  10  Bush,  92. 

»  White  V.  Clark,  .36  111.  285;  Moore  v.  Dunning,  29  111.  130;  81  Am.  Dec. 
301.  As  long  as  tlie  other  members  of  the  family  continue  in  the  occupancy  of 
the  homestead,  no  abandonment  can  be  presumed  from  the  absence  of  tlie  hus- 
band. Locke  r.  Piowell,  47  N.  H.  46.  Hence  under  the  statute  of  Michigan 
protecting  homesteads,  "when  owned  and  occupied  by  any  resident  of  tha 
state,"  the  homestead  of  an  absconding  debtor  cannot  be  seized  by  his  creditors 
while  hia  family  continue  to  reside  upon  it.     In  re  Charles  C.  Pratt,  1  Cent. 


§249  HOMESTEAD  EXEMPTIONS.  764 

The  fraudulent  act  or  conveyance  of  a  husband  does 
not — at  least  as  against  the  wife — defeat  the  home- 
stead estate.  If  a  deed  of  the  homestead  premises  is 
sot  aside  as  fraudulent,  the  homestead  character  re- 
attaches to  the  property,  and  binds  it  as  fully  as  though 
the  deed  had  never  been  made.^  In  Texas,  a  wife  who 
leaves  the  state,  not  intending  to  return,  or  who,  for 
three  or  four  years  before  her  husband's  death,  deserts 
and  abandons  him,  is  not  entitled  to  her  homestead 
rights  after  his  death.'  In  California,  the  fact  that 
a  wife  abandons  her  husband  and  commits  adultery 
does  not  destroy  her  interest  in  the  homestead.^  The 
waiver  or  abandonment  of  the  homestead  exemption, 
as  against  specified  claims,  cannot  be  taken  advantage 
of  by  the  holders  of  other  claims.  Except  as  against 
the  claims  specified,  the  homestead  rights  continue 
unabated.* 

§  249.  Liabilities  against  Which  the  Homestead 
Exemption  may  be  Asserted — Antecedent  Debts.— 
We  think   it   must   now  be    conceded   that  a   home- 

L.  J.  290.  As  the  homestead  is  designed  chiefly  for  the  benefit  of  the  wife, 
and  as  in  many  states  she  has  an  estate  in  the  homestead  premises  very 
similar  to  that  of  a  joint  tenant,  it  is  obvious  that  her  rights  ought  not  to  be 
capable  of  being  put  in  peril  by  the  act  of  her  husband,  to  wliich  she  gave  no 
assent.  Hence  her  rights  are  not  destroyed  by  his  waiver  (Allen  v.  Hawley, 
66  111.  164),  nor  by  her  compulsory  absence.  Mix  v.  King,  66  111.  145.  If  she 
joins  in  a  conveyance,  influenced  by  duress,  it  may  be  set  aside.  Helm  v. 
Helm,  11  Kan.  19. 

^  Hugunin  v.  Dewey,  20  Iowa,  368;  Castle  v.  Palmer,  6  Allen,  401;  In  re 
Detert,  7  Chic.  L.  N.  130;  14  Am.  Law  Reg.,  N.  S.,  166;  Cox  v.  Wilder,  2 
Dill.  45;  Vogler  v.  Montgomery,  13  Am.  Law  Reg.,  N.  S.,  244;  54  Mo.  577; 
McFarland  v.  Goodman,  13  Am.  Law  Reg.,  N.  S.,  697;  In  re  Poleman,  19  Int. 
Rev.  Rec.  94;  Sears  v.  Hanks,  14  Ohio  St.  296;  84  Am.  Dec.  378;  Wood  v. 
Qiambers,  20  Tex.  247;  Winn  r.  Meacham,  50  Miss.  34;  Currie  t;.  Sutherland, 
54  N.  H.  475;  Eckhardtr.  Schlecht,  29  Tex.  129;  Crummen  w.  Bennd,  08  >l  C. 
494;  Dreutzer  v.  Bell,  11  Wis.  114.     Contra,  Piper  v.  Johnson,  12  Minn.  60. 

•i  Travick  v.  Harris,  8  Tex.  312;  Earle  v.  Earle,  9  Tex.  630. 

3  Lies  V.  De  Diblar,  12  Cal.  3.30. 

*  In  re  Poleman,  6  Chic.  L.  N.  181. 


765  HOMESTEAD  EXEMPTIONS.  §249 

stead  law  cannot  be  asserted  against  liabilities  in 
existence  at  the  time  of  its  passage.^  Such  a  law 
withdraws  so  material  a  portion  of  the  debtor's  prop- 
erty from  the  reach  of  his  creditors  that,  if  enforced 
against  prior  liabilities,  it  must  necessarily  "  impair  the 
obligation  of  contracts,"  as  that  term  is  used  in  the 
constitution  of  the  United  States.  In  considerinp*  lia- 
bilities  arising  subsequently  to  the  homestead  law,  we 
shall  treat,  —  1.  Of  simple  liabilities;  2.  Of  habilities 
secured  by  lien  on  the  homestead  property.  Simple 
liabilities  may  be  divided  into  two  classes:  1.  Those 
which  were  created  before  the  property  was  impressed 
with  the  homestead  character;  2.  Those  which  are 
created  after  the  property  assumes  such  character.  As 
a  general  rule,  executions  founded  upon  simple  liabili- 
ties, whether  arising  before  or  after  the  creation  of  the 
homestead,  cannot  be  levied  upon  it.  But  as  to  ante- 
cedent liabilities,  this  rule  is  by  no  means  universal. 
The  holders  of  these  liabilities  may  have  permitted  them 
to  be  contracted  because  the  debtor  was  seised  of  val- 
uable property  apparently  subject  to  execution;  and  it 
may  be  regarded  as  an  act  of  bad  faith  on  his  part  to 
withdraw  a  substantial  part  of  his  assets  from  execution 
by  dedicating  them  as  a  homestead.  Hence  in  several 
of  the  states  the  statutes  in  reo:ard  to  homestead  ex- 
eraptions  have  not  shielded  the  claimant  from  certain 
pre-existing  debts.^  While  the  object  tf  these  statutes 
was  doubtless  to  prevent  the  debtor  from  obtaining 

1  See  autr,  §  219;  Guan  v.  Barry,  15  Wall.  610;  5  Leg.  Oaz.  193;  The 
Homestead  Cases,  22  Gratt.  2GG;  12  Am.  Rep.  507;  Milne  v.  Sclimidt,  12  La. 
Aun.  5.3.3;  Jones  v.  Brandon,  48  Ga.  593;  Edwards  v.  Keazcy,  96  U.  S.  595; 
17  Alb.  L.  J.  .346. 

»  Delcvan  v.  Pratt,  19  Iowa,  429;  Hyatt  v.  Spearman,  20  Iowa,  510;  Stevens 
V.  Stevens,  10  Allen,  146;  87  Am.  Dec.  630;  Clark  v.  Potter,  13  Gray,  21;  Rice 
V.  Southyatc,  10  Gray,  143;  Lawton  v.  Bruce,  39  Mc.  484. 


§219  HOMESTEAD  EXEMPTIONS.  76C 

delusive  credit  from  the  possession  and  apparent  owner- 
ship of  propcrt}^,  and  then  withdrawing-  such  property 
from  the  grasp  of  his  debtors  by  interposing  a  home- 
stead claim,  yet  the  language  of  some  of  them  indicates 
either  a  very  indistinct  view  of  the  wrong  to  be  reme- 
died, or  else  a  lamentable  want  of  skill  in  prescribing 
the  remedy;  for  instead  of  subjecting  the  homestead 
to  debts  contracted  prior  to  its  being  impressed  with 
the  homestead  character,  they  subject  it  to  debts  con- 
tracted prior  to  its  purchase,  or  prior  to  the  recording  of 
the  deed  therefor/  It  is  immaterial  that  the  debt  was 
contracted  in  another  state.^  So  where  a  debt  was  in 
existence  prior  to  the  homestead,  and  was  thereafter 
outlawed  by  operation  of  the  statute  of  limitations,  and 
was  subsequently  renewed,  it  was  still  considered  as 
havino-  an  existence  anterior  to  that  of  the  homestead, 
and  as  being  a  debt  for  which  the  homestead  was  liable 
to  be  sold.^  The  construction  of  these  statutes  has, 
however,  to  some  extent  been  controlled  b}^  the  idea 
that  their  object  was  merely  to  prevent  the  debtor  from 
withdrawing  from  execution  lands  upon  which  his 
creditors  probably  and  rightfully  relied  for  the  satisfac- 
tion of  their  debts.     Hence  it  has  been  held  that  lands 

1  Code  Iowa,  sec.  1992;  Gen.  Stats.  Ky.,  1873,  p.  434,  sec.  16;  Gen.  Stats. 
Vt.  (App.  1870),  c.  08,  sec.  7;  1  Wagner's  Stats.  Mo.  G98,  sec.  7:  Farra  v. 
Quigley,  57  Mo.  284;  West  River  Bank  v.  Gale,  42  Vt.  27;  Lamb  v.  Mason,  43 
Vt.  500;  Shindler  v.  Givens,  63  Mo.  494;  Lincoln  v.  Rowe,  64  Mo.  138. 

2  Laiug  V.  Cunningham,  17  Iowa,  510;  Brainard  v.  Van  Kuran,  22  Iowa,  264. 
»  Sloan  V.  Waugh,   18  Iowa,  224;   Pryor  v.  Smith,  4  Bush,  379;  Mills  v. 

Spaulding,  50  Me.  57.  The  renewal  of  an  old  debt  by  giving  another  note, 
security,  or  other  evidence  of  indebtedness,  whether  of  a  higher  nature  or  not, 
does  not  extinguish  the  original  debt.  Kence  where  the  homestead  could  have 
been  sold  under  a  judgment  for  it,  such  sale  may  take  place  under  a  judgment 
given  on  the  renewed  note  or  other  evidence  of  indebtedness.  Kibbey  v.  Jones, 
7  Bush,  243;  Ladd  v.  Dudley,  45  N.  H.  61;  McLaughlin  v.  Bank  of  Potomac, 
7  How.  228;  Lowry  v.  Fisher,  2  Bush,  70;  92  Am.  Dec.  475;  Weymouth  v. 
Sanborn,  43  N.  H.  171;  80  Am.  Dec.  144;  Beed  v.  Defebaugh,  24  Pa.  St.  495. 


767  HOMESTEAD  EXEMPTIONS.  §  249  a 

acquired  by  descent^  or  gift,^  or  purchased  with  the 
proceeds  of  a  prior  homestead,^  may  be  held  as  exempt 
regardless  of  antecedent  debts.  The  fact  that  a  debtor 
IS  msolvent  or  in  failing  circumstances  will  not,  unless 
the  statute  declares  otherwise,  prevent  him  from  dedi- 
cating as  a  homestead  real  estate  previously  owned  by 
him,  nor  even  from  purchasing  real  property  with  his 
personal  assets  and  exempting  it  as  a  homestead.^ 

§  249  a.  Claims  for  Moneys  Fraudulently  Invested 
in  the  Homestead.- While  a  claim  or  declaration  of 
homestead  can  rarely  be  avoided  because  a  fraud  upon 
the  creditors  of -the  claimant,  yet  there  may  sometimes 
be   debts   agamst  which   the    exemption  will   not   be 
allowed,. because  its  allowance  will  perpetrate  a  fraud. 
In  an  early  California  case,  a  sale  of  personal  property 
by  an  msolvent,  for  the  purpose  of  raising  moneys  to 
discharge  hens  existing  on  the  seller's  homestead   was 
adjudged  to  be  fraudulent  and  void  because  of  its  direct 
tendency  to  delay  and  defraud  his  creditors.^     But  in 
this  case  the  right  to  hold  the  homestead  as  exempt 
was   not   involved.     It   is   true,  the  court  said-  -It 
would  seem  to  be  only  fair  that  the  homestead  should 
remain  answerable  for  the  debts  charged  upon  it,  and 
not,  after  becoming   a    source   of  credit,   be   relieved 
mtentionally  by  the  disposition  of  aiy  the  other  prop- 

'  Jewell  V.  Clark,  78  Ky.  398. 
2  Ilolcomb  V.  Hood,  1  S.  W.  Rep.  401  (Ky  ) 
;^«a^«on..  Mmturn,  18  Iowa,  30;  Furra  V  Quigley,  57  Mo.  284;  Benham 
V.  Chamberlain.  .39  Iowa.  358;  Sargent  v.  Chubbuck.  19  Iowa  37 

EanJall  ..  Buffingtoa,  10  Cal.  491;  Hawthorne  r.  Smith.  3  Nev.  18^-  93 
Am.  Dec.  JJr  Culver  ..  Rogers.  28  Cal.  o20;  Cipperly  .  Rhodes,  53  HI.  346- 

Mead,am"  0  M  ^^  f  =  ""T  "  ''^^^"'  ''  ^^^^  ^'^'  Edmondson  .' 
Meacha,  .  50  M.ss  3..  Contra,  Riddell  v.  Shirley.  5  Cal.  488;  Pratt  v.  Burr 
5  Lisa.  SO;  Burnside  v.  Terry,  51  Ga.  190.  >         ^^^  v.  iiurr, 

^  Riddell  V.  Siiirley,  5  Cal.  488. 


§•249  a  HOMESTEAD  EXEMPTIONS.  768 

erty  of  the  debtor,  leaving  notliiug  for  the  satisfaction 
of  the  other  creditors";  but  it  does  not  appear  that 
the  court  would  have  subjected  the  homestead  itself  to 
execution  because  the  debtor   had    sold  his  personal 
assets   to   discharge  liens   existing   thereon.      Where 
land  belonged   to  two  copartners,  who,  on  becoming 
insolvent,  in  order  to  hinder  and  delay  their  creditors, 
divided  it,  and  one  of  them  then  filed  a  declaration  of 
homestead  on  the  part  assigned  to  him  in  the  division, 
the  firm  creditors  were  permitted  to  levy  upon  and  sell 
the  homestead  for  the  firm  debts.     But  this  was  on 
the  ground  that  the  land,  while  held  by  the  partnership, 
could  not  be  dedicated  as  a  homestead,  and  the  jury 
had  found  that  the  object  of  the  conveyance  was  fraud- 
ulent.    It  was  the  conveyance  that  was  disregarded  as 
fraudulent.     Such  being  the  case,  there  was  no  estate 
in  the  debtor  upon  which  the  declaration  of  homestead 
could  operate.^     If  moneys  are  fraudulently  taken  or 
procured,  and  then  employed  to  discharge  a  valid  lien 
existing  on  the  homestead,  persons  equitably  entitled 
to  such  moneys   may  obtain  relief  by  proper  suit  in 
chancery,  wherein  the   moneys  so  fraudulently  taken 
and  paid  may  be  decreed  to  be  a  lien  on  the  home- 
stead;   or  in  other  words,  the  lien    fraudulently  dis- 
charged may  be  revived  and  enforced  for  the  benefit  of 
the  complainants,  who  would  otherwise  be  defrauded 
for  the  benefit  of  the  claimant.     Neither  he  nor  his  wife 
has  any  just  cause  of  complaint  against  such  a  decree, 
for  it  merely  wrests  from  them  the  fruits  of  the  fraud, 
and  "neither  ever  had,  or  ever  could  have,  any  right 
founded  on  the  fraudulent  appropriation  of  the  funds  of 
other  parties."^ 

»  Bishop  r.  Hubbard,  23  Cal.  514;  83  Am.  Dec.  132. 

»  Shion  V.  Macpberson,  58  Cal.  590;  Red  Jacket  Tribe  v.  Gibson,  70  Cal.  128. 


769  HOMESTEAD   EXEMPTIONS.  §§  249  b,  249  c 

§  249  b.  Exemption  against  Judgments  for  Torts. — 
With  respect  to  the  Habihties  arising  after  the  creation 
of  the  homestead,  and  founded  upon  contract,  it  is  clear 
that  they  are  not  enforceable  against  the  homestead.. 
In  relation  to  the  liabilities  arising  from  torts,  the  laws 
of  the  different  states  are  not  uniform.  In  New  York 
it  has  once  been  determined  that  a  homestead  cannot 
be  sold  under  a  judgment  for  a  tort,^  but  it  has  twice 
been  determined  that  it  can  be  so  sold.^  In  Georgia 
it  is  clear  that  the  homestead  exemption  cannot  prevail 
against  judgments  founded  upon  torts  ;^  and  the  stat- 
utes of  some  of  the  other  states  limit  the  homestead 
exemption  to  debts  arising  out  of  contracts.*  In  the 
majority  of  the  states,  however,  the  homestead  exemp- 
tion prevails  against  liabilities  founded  upon  torts  as 
well  as  against  those  founded  upon  contracts/ 

§  249  c.  Exemption  against  Judgments  in  Favor 
of  the  State  or  the  United  States.  —  The  application  of 
the  maxim,  that  the  sovereign  is  not  bouad  by  any  stat- 
ute, unless  expressly  named  therein,  to  the  homestead 
laws,  would  very  generally  result  in  their  bemg^  held 
unavailing  against  a  writ  in  favor  of  the  state  or  of  the 
United  States.  So  far  as  the  burdens  of  taxation;  are 
concerned,  doubtless  homesteads  must  bear  their  share. 
With  respect  to  judgments  in  civil  action/ in,  favor  of 
a  state,  there  have  been  decisions  holding  that  the 
maxim  above  referred  to  is  applicable,  and  therefore 

*  Cook  V.  Newman,  8  How.  Pr.  523. 

'  Schouton  V.  Kilmer,  8  How.  Pr.  527;  Lathrop  v.  Singer,  39  Barb.  396. 

*  Davis  V.  Heuson,  29  Ga.  345. 

*  Kenyon  v.  Gould,  61  Pa.  St.  292;  Meredith  v.  Holmes,  68  Ala.  190;  Lane 
V.  Baker,  2  Grant  Gas.  424;  State  v.  Melogue,  9  Ind.  196. 

'  Conroy  V.  Sullivan,  44  111.  451;  Smith  v.  Omans,  17  Wis.  395;  DcUinger 
V.  Tweed,  06  N.  C.  206;  Gill  u.  Edwards,, 87  N.  C.  76;  In.  re  Radway,  3  Hughes, 
609. 

Vol.  I.— 49 


§249d  HOMESTEAD  EXEMPTIONS.  770 

that  the  exemption  cannot  be  allowed,  in  the  absence 
of  words  in  the  statute  showing  an  intent  to  bind  the 
state. ^  The  object  of  these  statutes  is  to  protect  those 
in  humble  circumstances  from  becoming  houseless  and 
homeless,  and  thereby  saved  from  being  a  burden  on 
the  state.  To  the  general  policy  which  the  state  pre- 
scribes for  its  citizens  upon  this  subject  it  may  well  be 
deemed  to  assent,  when  its  own  interests  are  involved. 
Hence  the  almost  unanimous  concurrence  of  the  au- 
thorities in  declaring  that  the  homestead  exemption 
may  be  urged  against  a  state  or  the  United  States 
witli  like  effect  as  against  a  private  citizen.^ 

§  249  d.  Sale  of  Homesteads  to  Satisfy  Judgment 
Liens. — The  lien  of  a  judgment  and  of  an  execution  is 
almost  universally  regarded  as  arising  from  the  right 
to  sell  property  thereunder.  And  hence,  where  the 
right  of  sale  cannot  be  asserted,  the  existence  of  the 
lien  must  be  denied.^  It  would  follow,  as  a  logical 
result,  from  the  application  of  this  general  principle, 
that  a  judgment  rendered  after  the  creation  and  before 
the  abandonment  of  a  homestead  cannot  be  a  lien 
thereon ;  and  as  a  result  of  this  last  proposition,  it  must 
follow  that  a  homestead  may  be  sold  or  mortgaged,  and 
that  the  title  of  the  vendee  or  mortgagee  will  be  para- 
mount to  that  of  a  prior  judgment  creditor.  If  the 
property  was  a  homestead,  and  as  such  exempt  from 
execution,  the  exemption  right  is  not  lost  by  the 
transfer  of  the  property  to  a  third  person.     It  cannot 

>  Brooks  V.  State,  54  Ga.  3G;  Commonwealth  v.  Cook,  8  Bush,  220;  8  Am. 
Rep.  45G;  overruled,  Commouwealth  v.  Lay,  12  Bush,  2S3;  23  Am.  Rep.  718; 

2  Salentine  v.  Fink,  8  Biss.  503;  Fink  v.  O'Neil,  100  U.  S.  272;  Common- 
wealth V.  Lay,  12  Bush,  283;  23  Am.  Rep.  718;  Hume  v.  Gossett,  43  111.  297; 
Loomia  v.  Gerson,  62  111.  12;  State  v.  Pitts,  51  Mo.  133;  Gladney  v.  Deavors, 
11  Ga.  89. 

*  Preeman  on  Judgments,  sees.  339,  340,  355. 


771  HOMESTEAD  EXEMPTIONS.  §249(1 

be  sold  in  his  hands  under  a  judgment  against  his  ven- 
dor.^ In  some  of  the  states,  a  different  view  of  the 
homestead  law  has  been  sustained.  Under  this  view, 
the  homestead  exemption  is  a  mere  personal  right  of 
the  claimant,  by  virtue  of  which  the  property  is  for  the 
time  beinof  withdrawn  from  forced  sale.  The  lien  of 
a  judgment  is  deemed  to  attach  to  the  property  not- 
withstanding this  right,  and  to  remain  in  abeyance 
only  so  long  as  the  right  continues  capable  of  assertion 
by  the  defendant.  Hence  when  the  defendant  sells 
the  property,  and  thereby  parts  with  his  rights  to 
insist  upon  its  exemption,  it  at  once  becomes  liable  to 
sale  under  a  judgment  lien  existing  against  him.^  In 
two  of  the  states^  where  this  view  was  sustained  by 
the  courts,  the  legislature,  aware  of  the  inconveniences 
likely  to  result  from  its  maintenance,  enacted  statutes 
under  which  homesteads  are  not  liable  to  judgment 
liens,  and  may  therefore,  as  in  other  states,  be  sold  or 
encumbered  by  the  owner,  irrespective  of  liens  existing 
against  him  arising  from  judgments  rendered  after  the 
premises  became  his  homestead.  Except  in  the  states 
of  Ohio,  Louisiana,  Texas,  Alabama,  and  Mississippi,* 

1  Holland  V.  Kreider,  86  Mo.  59;  Ackley  r.  Chamberlain,  16  Cal.  181;  76 
Am.  Dec.  516;  Bowman  v.  Norton,  10  Cal.  214;  Marriiicr  v.  Smith,  27  Cal. 
649;  Defifelizr.  Pico,  46  Cal.  289;  Englcbrecht  i'.  Shale,  4/  Cal.  627;  Green  u. 
Marks,  25  III.  221;  Hume  v.  Gos3ett,  4.']  III.  297;  Bunnell  v.  Smitli,  53  111.  377; 
Coe  V.  Smith,  47  111.  225;  McDougall  v.  Craudall,  43  III.  231;  Lamb  v.  Shays, 

14  Iowa,  507;  Parker  v.   Dean,  45  Miss.   409;  Bliss  v.   Clark,  39  111.  590;  89 
Am.  Dec.  330;  Fishback  v.  Lane,  36  111.  437. 

»  Hoyt  V.  Howe,  3  Wis.  753;  62  Am.  Dec.  705;  Whitworth  v.  Lyons,  .39 
Miss.  467;  Allen  v.  Cook,  26  Barb.  374;  Smith  v.  Brackett,  36  N.  Y.  571;  Fol- 
Bomv.  Carli,  5  Minn.  333;  80  Am.  Dec.  429;  Trustees  v.  Schell,  17  Wis.  308; 
Tillotson  V.  Millard,  7  Minn.  513;  82  Am.  Dec.  112. 

*  The  states  referred  to  are  Minnesota  and  Wisconsin.     Seamans  v.  Carter, 

15  Wis.  548;  82  Am.  Dec.  096;  Dopp  r.  Albee,  17  Wis.  590. 

♦  Wildemuth  /•.  Ku-nig,  41  Ohio  St.  18:);  Jones  v.  Hart,  02  Miss.  13;  Faqua 
V.  ChafiFe,  26  La.  Ann.  14S;  Stone  v.  Darnell,  20  Tex.  11;  McManus  ?'.  Camp- 
bell, 28  Tex,   267;  Trotter  v.  Dobbs,  38  Miss.   198,  holding  that  property  is 


§240d  HOMESTEAD  EXEMPTIONS.  772 

the  establishraent  of  a  homestead  can  in  no  wise  impair 
any  judgment   Hen    previously    existing.     In   such  a 
case,  wliilc  the  property  may  be  dedicated  as  a  home- 
stead, the  right  of  the  claimant  must  always  exist  in 
subservience  to  the  anterior  lien,^     In   some   of  the 
states  the  premises  occupied  as  a  homestead  may  all 
be  embraced  in.  the  declaration  or  claim  of  homestead, 
thouo'h    their  value   is   far  in   excess   of  the   amount 
which  the  statute  permits  to  be  retained  as  exempt. 
In  the  event  of  this  levy  of  an  execution  on  such 
premises,  certain  proceedings  designated  in  the  statute 
may  be  taken  for  the  purpose  of  setting  aside  to  the 
debtor  the  amount  to  which  he  is  entitled,  and  sub- 
jecting the  balance  to  execution.     In  such  a  case,  what 
is  the  effect  of  judgment  liens?     Do  they  attach  so 
as  to  entitle  their  holders  to  claim  the  proceeds  of  the 
homestead  in  excess  of  the  amount  which  the  debtor 
may  retain?     It  has   been  said  that  in  such   circum- 
stances "there  is  no  lien  of  tlie  judgment  until  the 
levy  of  an  execution."'^     From  this  conclusion  we  dis- 
sent.    A  judgment  lien  attaches  to  all  the  real  prop- 
erty  of  the    defendant    not    exempt    from   execution. 
That  part  of  the  property  claimed  as  a  homestead  in 
excess  of  the'  amount  which  tlie  debtor  may  retain  as 
exempt,  is  at  all  times  subject  to  execution  and  to 

exempt  if  it  is  a  homestead  at  the  date  of  the  sale.  The  homestead  cannot 
defeat  prior  mortgages.  Rix  v.  McHeury,  7  Cal.  89;  Roupe  w.  Carradine,  20 
La.  Ann.  244;  Ely  v.  Eastwood,  26  111.  107;  Smith  r.  Marc,  26  111.  150.  Nor 
trust  deeds.     Chipman  v.  McKinney,  41  Tex.  76. 

^  Liehetran  v.  Goodsell,  26  Minn.  417;  Elston  v.  Rohinson,  23  Iowa,  208; 
McCormick  v.  Wilcox,  2.5  111.  274;  Howard  v.  Wilbur,  5  Allen,  219;  Tuttle  v. 
Howe,  14  Minn.  145;  100  Am.  Dec.  205;  Hale  v.  Heaslip,  16  Iowa,  457; 
McKeithan  v.  Terry,  64  N.  C.  25;  Seamans  v.  Carter,  15  Wis.  548;  82  Am. 
Dec.  696;  Sluder  v.  Rogers,  64  N.  C.  289;  Dopp  v.  Albee,  17  Wis.  590;  Trus- 
tees  V.  Schell,  17  Wis.  308. 

»  Barrett  v.  Sims,  59  Cal.  619. 


773  HOMESTEAD  EXEMPTIONS.  §249e 

forced  sale,  and  there  is  therefore  no  reason  why  credi- 
tors may  not  with  respect  thereto  obtain  the  benefits 
both  of  judgment  and  attachment  Hens.^ 

§  249  e.    Attachment  Liens  against  Homesteads. 

—  Whether  the  dedication  of  a  homestead  can  impair 
a  pre-existing  attachment  lien  is  a  question  upon  which 
the  courts  are  divided.  In  California  and  Nevada, 
the  lien  of  the  attachment  may  be  destroyed  by  the 
subsequent  dedication  of  the  premises  as  a  homestead 
at  any  time  before  the  judgment  is  docketed,  so  as  to 
become  a  lien.^  These  decisions  are  founded  upon  a 
consideration  of  the  homestead  statutes  of  those  states, 
leaving  out  of  view  the  provisions  of  the  code  respect- 
ing attachments.  It  is  true  that  the  Civil  Code  of 
California,  in  enumerating  the  judgments  under  which 
the  homestead  may  be  sold,  does  not  specify  any  judg- 
ments except  those  'J obtained  before  the  declaration  of 
homestead  was  filed  for  record,  and  which  constitute 
liens  on  the  premises."^  But  the  Code  of  Civil  Pro- 
cedure declares  that  plaintifif  "may  have  the  property 
of  the  defendant  attached  as  security  for  the  satis- 
faction of  any  judgment  that  may  be  recovered."'* 
Such  attachment  is  directed  to  be  of  all  property  of 
"defendant  within  the  county,  not  exempt  from  execu- 
tion."^ "If  judgment  be  recovered  by  the  plaintiff, 
the  sheriff  must  satisfy  the  same  out  of  the  property 
attached."  ^     These  provisions  clearly  make  it  the  duty 

1  Moriarty  v.  Gait,  112  111.  378;  Eldridge  v.  Pierce,  90  111.  474. 

*  Wilson  V.  Madison,  58  Cal.  1;  McCracken  v.  Harris,  54  Cal.  81;  Sullivan 
V.  Hendrickson,  54  Cal.  258;  Hawthorne  v.  Smith,  3  Nev.  182;  93  Am.  Dec. 
397. 

'  Civ.  Code  Cal.,  sec.  1241. 

*  Code  Civ.  Proc.  Cal.,  sec.  537. 

*  Code  Civ.  Proc.  Cal.,  sec.  540. 

*  Code  Civ.  Proc.  Cal. ,  sec.  550, 


§249f  HOMESTEAD  EXEMPTIONS.  774 

of  tlie  officer  to  levy  the  writ  on  all  property  not  then 
exempt  from  execution,  and  afterwards,  in  the  event  of 
plaintifl' s  recovering  judgment,  to  sell  all  the  property 
attached,  if  necessary  to  produce  a  satisfaction  of  such 
judgment.  We  think,  therefore,  that,  construing  all 
the  statutes  together,  it  clearly  appears  that  these 
decisions  are  wrong,  and  that  when  an  attachment  is 
properly  levied  on  lands  not  then  exempt  from  attach- 
ment and  execution,  a  lien  is  created  which  no  sub- 
sequently arising  exemption  can  suj^plant;  and  in  so 
thinking,  we  are  sustained  by  a  decided  preponderance 
of  the  adjudications  upon  this  subject.^  The  property 
dedicated  as  a  homestead  may  be  of  greater  value  than 
the  amount  allowed  for  a  homestead  exemption.  In 
this  event  the  statute  points  out  the  mode  of  proceed- 
ing to  subject  the  excess  to  execution,  and  the  mode 
so  designated  seems  to  exclude  every  other.^  Though 
the  point  seems  never  to  have  been  decided,  we  appre- 
hend that  an  attachment  levied  on  a  homestead  would 
initiate  a  lien  and  give  the  attaching  creditor  prece- 
dence with  respect  to  that  part  of  the  homestead  in 
excess  of  the  amount  allowed  by  law. 

§  249  f.    Vendor's    Liens   against    Homesteads.  — 

We  believe  the  rule  prevails  everywhere,  without  ex- 
ception, tJiat  the  right  of  the  holder  of  exempt  property, 
whether  real  or  personal,  to  claim  the  benefit  of  ex- 
emption, always  exists  in  subordination  to  the  right  of 
his  vendor  to  enforce  the  payment  of  any  sum  remain- 
ing due  for  the  purchase  price.  The  rule  that  a  home- 
stead may  be  sold  to  enforce  the  payment  of  a  vendor's 

1  Avery  v.  Stephens,  48  Mich.  24G;  Watkins  v.  Overby,  83  N.  C.  165; 
Kclley  V.  Dill,  23  Minn.  435;  Robinson  v.  Wilson,  15  Kan.  595;  BuUene  v. 
Hiatt,  12  Kan.  98. 

2  Barrett  j;.  Sims,  59Cal.  G15;  G2  Cal.  440. 


775  HOMESTEAD  EXEMPTIONS.  §249f 

lien  is  undoubted/  The  limits  within  which  this  rule 
must  be  confined  are  disputed.  Strictly  speaking,  a 
vendor's  lien  must  be  regarded  as  a  lien  existing  for 
the  purpose  of  securing  the  debt  due  from  a  vendee  to 
a  vendor.  But  there  are  many  instances  in  which  a 
person  other  than  the  vendor  has  been  so  connected 
with  the  purchase  of  homestead  property  that,  accord- 
ing to  equity  and  good  conscience,  he  ought  to  be  sub- 
rogated to  the  lien  of  the  vendor.  These  instances 
arise  whenever  any  one  pays  the  purchase  price,  or 
some  valid  existing  security  therefor,  for  the  benefit 
and  at  the  instance  of  the  occupants  of  the  home- 
stead. But  many  of  the  decisions  show  a  tendency  to 
disregard  the  strong  equities  of  these  persons,  and 
to  deny  them  that  relief  which  would  be  extended  to 
vendors.  Whenever  these  decisions  prevail,  a  third 
person  furnishing  money  with  which  to  buy  a  home- 
stead for  another,  or  to  relieve  another's  homestead 
from  a  vendor's  or  other  paramount  lien,  is  without 
anv  redress  aixainst  the  homestead.  He  must  seek 
satisfaction  out  of  other  property."  In  some  of  the 
states,  a  more  just  rule  prevails,  —  one  under  which  a 

1  Stone  V.  Darnell,  20  Tex.  12;  Barnes  v.  Gray,  7  Iowa,  26;  Montgomery  v. 
Tutt,  11  Cal.  191;  Phelps  r.  Conover,  25  III.  309;  Buckingham  v.  Nelson,  42 
Miss.  417;  Williams  v.  Young,  17  Cal.  403;  Succession  of  Foulks,  12  La.  Ann. 
537;  McHendry  v.  Reilly,  13  Cal.  75;  Perrin  v.  Serjeant,  33  Vt.  84;  Woolfork 
V.  Rickets,  41  Tex.  358;  Hopper  v.  Parkinson,  5  Nev.  2.33;  Tunstall  v.  Jones, 
25  Ark.  272;  Cole  v.  Gill,  14  Iowa,  527;  Andrews  v.  Alcorn,  13  Kan.  351;  Jop- 
lin  V.  Fleming,  38  Tex.  526;  Miller  v.  Marckle,  27  111.  405;  New  E.  Co,  v. 
Merriam,  2  Allen,  390;  Ulrich's  Appeal,  48  Pa.  St.  489;  Fehley  v.  Barr,  66 
Pa.  St.  190;  Stevens  v.  Stevens,  10  Allen,  146;  87  Am.  Dec.  030;  McCreery  v. 
Fortson,  35  Tex.  041;  Burford  t-.  Roaenficld,  37  Tex.  42;  Chamblissr.  Phelps, 
39  Ga.  38(5;  Christy  v.  Dyer,  14  Iowa,  438;  81  Am.  Dec.  493;  Toms  v.  Fite,  93 
N.  C.  274. 

^  Winslow  V,  Noble,  101  111.  194;  Burnap  v.  Cook,  16  Iowa,  149;  Lear  v. 
Heffner,  28  La.  Ann.  829;  Malone  v.  Kaufman,  38  Tex.  454;  Wynn  v.  Flan- 
negau,  25  Tex.  778;  Skaggs  v.  Nelson,  25  Miss.  88;  Notte's  Appeal,  45  Pa.  St. 
361;  Stansell  v.  Roberts,  13  Ohio,   148. 


§2-t9f  HOMESTEAD  EXEMPTIONS.  776 

person  paying  the  purchase-money  at  the  instance  of 
the  homestead  claimant  may  enforce  its  repayment  by 
proceeding  against  the  homestead  premises/  Under 
these  decisions  the  form  or  mode  of  paying  the 
purchase-money  seems  immaterial.  The  question  is, 
whether  the  party  seeking  to  subject  the  homestead 
to  his  debt  has  in  effect  dischargfed  the  obligation  of 
the  homestead  claimant  to  first  pay  for  the  premises 
before  holding  them  as  exempt.  Hence  the  following 
persons  have  been  adjudged  to  be  entitled  to  enforce 
their  claim  against  the  household :  a  vendor  who  had 
received  in  payment  notes  of  a  third  person  indorsed  to 
him  by  the  vendee  and  claimant;^  one  who  advances 
money  to  pay  for  the  homestead,  or  to  discharge  a 
valid  lien  thereon,^  except  Avhen  the  moneys  were 
advanced  on  the  mere  personal  security  of  the  vendee, 
and  without  any  reference  to  the  use  which  he  was  to 
make  of  them.  A  person  in  possession  of  property 
claimed  as  a  homestead  may  purchase  a  title  thereto 
different  from  that  under  which  he  has  before  held.  A 
vendor's  lien  for  money  agreed  to  be  paid  for  this  title 
may  be  enforced.  The  wife  may,  however,  defeat  its 
enforcement,  by  showing  that  the  new  title  was  not 
paramount  to  that  under  which  the  property  was  held 
before  its  acquisition.^  The  questions  relating  to  ven- 
dor's lien,  or  the  right  of  the  plaintiff  to  be  subrogated 
to  a  vendor's  lien,  need  not  concern  the  officer  in  the 

1  Carr  v.  Caldwell,  10  Cal.  384;  70  Cal.  740;  Pratt  v.  Toledo  Bank,  12  Kan. 
570;  Austin  v.  Underwood,  37  111.  438;  87  Am.  Dec.  254;  McGee  v.  McGee,  51 
111.  500;  99  Am.  Dec.  571.  See  Eyster  v.  Hatheway,  50  111.  521;  99  Am.  Dec. 
537;  Kelly  v.  Stephens,  39  Ga.  4GG;  Griffin  v.  Trentlin,  48  Ga.  148;  Allen  v. 
Hawley,  66  111.  170. 

2  Whitaker  v.  Elliott,  73  N.  C.  18G;  Lane  v.  Collier,  46  Ga.  58. 

»  Lassen  V.  Vance,  8  Cal.  271;  68  Am.  Dec.  322;  Nichols  v.  Overacker,   16 
Kan.  54;  Kamrick  v.  People's  Bank,  54  Ga.  502;  Griffin  v.  Trentlen,  48  Ga.  143. 
*  Cassell  V.  Boss,  33  111.  244;  85  Am.  Dec.  270. 


777  HOMESTEAD  EXEMPTIONS.  §249f 

execution  of  the  writ.  If  the  judgment  is  a  simple 
money  judgment,  containing  no  directions  showing  on 
wha,t  property  it  may  be  levied,  the  homestead  is 
exempt,  unless  the  judgment  is  secured  by  a  pre- 
existing attachment,  tlie  continued  effect  of  which  is 
conceded  by  the  laws  of  the  state.  If  the  plaintiff 
claims  a  lien  he  can  only  enforce  it  by  some  appropriate 
proceeding  in  equity,  resulting  m  a  decree  recognizing 
the  lien,  and  directing  it  to  be  satisfied  by  the  sale  of 
specified  property.  An  order  of  sale  pursuant  to  such 
a  decree  will  justify  the  oflBcer  in  selling  the  property 
therein  described,  and  will  preclude  the  defendant 
from  disputing  the  validity  of  such  sale.  But  in  the 
absence  of  such  a  decree,  the  ofiicer  cannot  take  into 
consideration  the  question  whether  indebtedness,  out 
of  which  the  judgment  arose  was  in  any  way  connected 
with  the  purchase  price  of  the  property  claimed  as  a 
homestead.^  The  decree  under  which  the  officer  acts 
may  purport  to  direct  a  sale  of  the  homestead  prem- 
ises; but  the  efiect  of  the  sale,  when  made,  may  be 
doubtful,  because  of  the  failure  to  make  the  wife  a 
party  to  the  suit,  and  thereby  obtain  in  advance  of  the 
sale. an  adjudication  upon  her  interests.  This  happens 
when  a  mortgage,  executed  by  her  husband,  in  which 
she  did  not  join,  is  foreclosed  against  him  alone.  Such 
a  mortgage  may  be  enforced  when  given  for  the  pur- 
chase-money. But  what  will  be  the  effect  of  a  decree 
for  its  enforcement  to  which  the  wife  is  not  a  party  ? 
In  some  instances  a  sale  thereunder  has  been  held  to 
entitle  the  purchaser  to  possession  of  the  property 
sold,  as  against  the  wife,  upon  proof  that  the  mortgage 

1  Tunstall  v.  Jones,  25  Ark.  272;  Pinchain  v.  Collard,  13  Tex.  33.3;  Wil- 
liama  t».  Young,  17  Cal.  403.     Contra,  Durham  v.  Young,  72  N.  C.  357. 


§'24l)g  HOMESTEAD  EXEMPTIONS.  77B 

was  given  for  the  purchase-money.^  If  the  wife,  under 
the  statutes  of  the  state,  has  any  estate  or  interest  in 
the  homestead,  we  very  mucli  doubt  the  efficiency  of  a 
sale  under  a  judgment  to  which  she  was  not  a  party,  to 
divest  her  interest  or  to  entitle  the  purchaser  to  dis- 
possess her  of  her  home. 

§  249  g.  Meclianics'  Liens  against  the  Homestead. 
— Almost  universally  the  statutes  in  relation  to  home- 
steads do  not  exempt  them  from  sale  under  judgments 
foreclosing  mechanics'  liens.^  When  the  inception  of 
such  a  lien  antedates  the  dedication  of  the  premises  as 
a  homestead,  there  can  be  no  doubt  of  the  propriety  of 
this  rule,  both  because  it  is  inequitable  for  the  claimants 
to  receive,  without  compensation,  labor  and  materials, 
and  use  them  in  constructing  improvements  to  be  held 
as  exempt,  and  because  a  homestead  claim  or  declara- 
tion is  generally  subordinate  to  all  pre-existing  liens. 
But  if  the  homestead  precedes  the  inception  of  the 
mechanics'  lien,  and  the  statute  of  the  state  forbids  the 
encumbering  or  abandoning  of  the  homestead  without 
the  assent  of  the  wife,  there  is  grave  doubt  of  the 
right  to  assert  a  mechanic's  lien  against  the  homestead, 
unless  it  is  based  upon  some  contract  to  which  the  wife 
has  given  her  assent  in  the  mode  in  which  she  is  per- 
mitted to  encumber  her  homestead.  If  the  statute 
denies  the  exemption,  as  against  the  liens  of  mechanics 
and  laborers,  this  will  not  permit  the  enforcement  against 
the  homestead  of  the  lien  of  one  who  furnishes  mate- 
rials which  are  used  in  erecting  improvements  thereon.^ 

1  Skinner  v.  Beatty,  16  Cal.  156;  Amphlett  i'.  Hibbard,  29  Mich.  298. 

*  Allen  2).  Harley,  3  S.  C.  412;  Mercliant  v.  Perez,  11  Tex.  20;  Stevenson  v. 
Marony,  29  111.  534;  Hawthorne  v.  Smith,  3  Nev.  186;  93  Am.  Dec.  397;  Stone 
V.  DarroU,  20  Tex.  14;  Tlioinpson  on  Homesteads  and  Exemptions,  eecs.  372, 
373;  Tuttle  o.  Howe,  14  Minn.  145. 

^  Pvichards  v.  Shear,  70  Cal.  187. 


'779  HOMESTEAD  EXEMPTIONS.  §§  249  h,  250 

§  249  h.  Miscellaneous  Debts  against  Wliich  Home- 
steads are  not  Exempt. — In  Georgia,  the  homestead 
^  exemption  is  subordinate  to  the  lien  allowed  by  statute  to 
"factors,  merchants,  landlords,  dealers  in  fertilizers,  and 
all  other  persons  furnishing  supplies,  money,  farming 
utensils,  or  other  articles  necessary  to  make  crops."  ^  In 
New  Hampshire,  under  a  statute  providing  that  the 
homestead  exemption  shall  not  extend  to  "any  claim  for 
labor  less  than  one  hundred  dollars,"  it  was  held  that 
this  exception  "would  not  ordinarily  be  understood  to 
embrace  the  services  of  the  clergyman,  physician,  lawyer, 
commission  merchant,  or  salaried  officer,  agent,  railroad 
and  other  contractors,  but  would  be  confined  to  claims 
arising  out  of  services  where  physical  toil  was  the  main 
ingredient,  although  directed  and  made  more  valuable 
by  mechanical  skill."  ^  In  Minnesota,  the  portion  of 
the  homestead  act  "which  excepts,  from  the  exemption 
provided,  debts  or  liabilities  for  wages  due  to  clerks, 
laborers,  or  mechanics,"  was  held  to  be  void,  because 
in  direct  conflict  with  the  bill  of  rights  of  that  state.^ 

§  250.  By  the  Homestead  Act  of  the  United  States, 
the  provision  is  made  that  "  no  lands  acquired  under 
the  provisions  of  this  act  shall,  in  any  event,  become 
liable  to  the  satisfaction  of  any  debt  or  debts  con- 
tracted prior  to  the  issuing  of  the  patent  therefor."* 
Property  acquired  under  this  act  is  exempt  from  exe- 
cution for  a  debt  created  before  the  issuing  of  the 
patent,  but  afterward  reduced  to  a  judgment  against 
the  patentee.     As  they  are  not  subject  to  sale  under 

*  Tift  V.  Newsom,  44  Ga.  600;  Davis  v.  Meyers,  41  Ga.  95. 
2  Weymouth  v.  Sanborn,  43  N.  H.  171;  80  Am.  Dec.  144. 

s  Tuttlo  V.  Strout,  7  Minn.  465;  82  Am.  Dec.  108. 

*  Smith  V.  Steele,  13  Neb.  1.  # 


§250  HOMESTEAD  EXEMPTIONS.  78(f 

execution,  it  is  not  possible  for  the  judgment  to  create 
any  lien  on  the  lands  acquired  under  the  act.  Plence 
the  patentee  may,  notwithstanding  such  judgment, 
transfer  the  lands,  and  a  sale  under  the  judgment  will 
not  affect  the  title  of  the  vendee  of  the  patentee.^ 
Under  this  act,  the  homestead  claimant  may,  before 
the  expiration  of  the  five  years  he  is  required  to  reside 
on  the  lands,  obtain  a  patent  by  making  payment  to 
the  government.  In  this  event,  his  title,  though  hav- 
ing its  inception  under  the  homestead  act,  is  con- 
summated by  the  payment  of  money  instead  of  by 
continuous  residence  for  the  period  prescribed  by  the 
act.  The  supreme  court  of  Oregon  has,  nevertheless, 
decided  that  the  patent,  though  procured  by  payment, 
is  not  the  less  obtained  and  issued  under  the  home- 
stead act,  and  that  it  vests  a  title  in  the  patentee 
which  cannot  be  made  to  contribute  to  the  payment  of 
his  pre-existing  debts.^ 

1  jMiller  v.  Little,  47  Cal.  348.  2  Clark  v.  Bayley,  2  Cent.  L.  J.  299. 


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